If you’re the subject of a criminal investigation, you may have a duty to preserve any electronic records that are relevant to the claim – depending on the allegations against you and the nature of discovery requests in the process.
How exactly are you supposed to preserve these electronic records? And what happens if you fail to do so?
A Duty to Preserve
According to the criminal defense team at SBBL Law, “You have a duty to preserve electronically stored information (ESI) relevant to potential legal claims as soon as you reasonably anticipate litigation. Essentially, that means it’s your responsibility to keep electronic records intact the moment you think you might have legal issues on the horizon.”
This duty stems from broader legal ideas meant to streamline legal processes and preserve our ability to accurately mete out justice. To make sure both parties have a fair and balanced opportunity to make their respective cases, we have thorough discovery processes in both civil and criminal procedures meant to encourage parties to share information proactively.
The law imposes a duty to preserve evidence to make sure the facts of a given matter can be thoroughly explored, and because the party currently in control of that information has a disproportionate advantage with respect to information. If you have exclusive control of your email servers, for example, it’s going to be your responsibility to preserve company emails so that the opposing side has an opportunity to investigate.
That doesn’t mean you need to incriminate yourself or volunteer juicy information to the other side on a silver platter, but it does mean that you can’t destroy or unreasonably hide information that is crucial to the legal matter at hand.
Also note that this duty kicks in whenever you reasonably anticipate litigation. No lawsuit has to be filed, and no investigation needs to begin for this duty to apply. The instant you think there might be a legal issue in the near future, you need to respect this duty.
A Litigation Hold
Once you reasonably anticipate litigation, you need to place a litigation hold on any relevant materials and information. Essentially, this is a formal label that marks certain types of information and electronic documents to be preserved.
The Consequences of Failing to Preserve
It’s vitally important to follow reasonable steps to preserve evidence that might be relevant in potential future claims. But what happens if you don’t take these reasonable steps?
There are many potential consequences, depending on the nature of the offense, the nature of the legal claims against you, the types of evidence that were destroyed or tampered with, and the steps you actually took. Depending on the context, you might walk away with a small fine, or you might face criminal charges.
In civil matters, preservation of electronic evidence is governed by FRCP Rule 37(e), which dictates that parties take “reasonable steps” to preserve relevant evidence. “Reasonable” is one of the most important words in the law, and it governs the required steps to preserving evidence. As long as you took reasonable measures – in other words, measures that the average, rational person would take – you probably won’t face any significant consequences for evidence issues that arise in the future.
The Importance of Communication
Communication is arguably your best tool in preserving evidence, as it’s going to help you coordinate the teams responsible for preserving that evidence – and allow you to prevent individual parties from taking unauthorized action of their own accord.
- Communicate as soon as possible. There is no time to waste. Communicate with your entire organization, or at least the relevant parties, as soon as you begin to reasonably anticipate litigation.
- Warn against destruction. Make sure to explicitly state that no one is to delete or tamper with any electronic records that might be relevant to the claim. You may need to prove this communication later.
- Keep all parties up to date. Keep all relevant parties apprised of what’s happening, and provide them with further instructions if necessary.
Coordination With IT
You also need to be in frequent contact with your IT team. These are the gatekeepers of your electronic information.
- Immediate action. Ask your IT team to start taking proactive action to preserve electronic records as soon as possible.
- Backups and backups. If you can, create backups of any systems that might be relevant, and consider additional backups as a measure of extra security.
- Clear documentation. Make sure you clearly and concretely document all the steps you took to preserve and hold evidence in your organization.
If you anticipate any kind of litigation on the horizon, you need to immediately impose a litigation hold, start communicating with your IT team, and call a lawyer as soon as possible. The quicker and more thoroughly you act, the better.
