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As of December 2015, subsection 37(e) replaces the previous subpart in its entirety and features a new title: “Failure to Preserve Electronically Stored Information.” Rule 37(e) is also accompanied by official Committee Advisory notes that clearly call out counsel to preserve clients’ ESI and that counsel should “become familiar with their clients’ information systems and digital data—including social media—to address these issues.” This meaning that the new law requires that social evidence is given at least equal weight and import as other forms of ESI such as email and documents.

“The amendments to the Federal Rules of Civil Procedure (FRCP) describe the duty to preserve potential evidence when litigation can be reasonably anticipated.” When an organization is involved with litigation, a unique set of issues arises. The duty to preserve requires organizations to preserve email and other electronic information, which means you must be able to quickly and easily access, search, place litigation holds, and publish electronic information. Otherwise, your organization could face fines, sanctions, and other penalties.

The case of Zubulake vs. UBS Warbug LLC in 2004 outlines the duties of counsel to preserve potentially relevant evidence. The ruling comprises some of the most often cited in the area of electronic discovery, and were made prior to the 2006 amendments to the Federal Rules of Civil Procedure. This court, in this case, reaffirmed its earlier holding regarding the trigger for defendant’s duty to preserve, namely that “in late 1999 the entire computer and component manufacturers industry was put on notice of a potential for litigation regarding defective floppy disk components by the well-publicized settlement in a large class action lawsuit again Toshiba.” Accordingly, for defendant MSI’s failure to uphold its duty to preserve, the court found sanctions were warranted.

The Viramontes vs. U.S. Bancorp case reiterates that organizations don’t need to keep ESI for legal or regulatory purposes until the duty to preserve is reasonably anticipated. As with other evidence, ESI can’t be intentionally destroyed. In fact, businesses have an affirmative duty to preserve relevant ESI.

The primary focus of the Apple Inc. vs. Samsung Electronics Co., LTD case was the defendant’s failure to disable the biweekly auto-delete feature of its proprietary email system despite a duty to preserve. Compounding the problem was defendant’s failure to follow up with its employees to ensure their compliance with the litigation hold. Rather, it was within each employee’s discretion whether to save relevant documents.

As a result of these failures, relevant emails were lost. Accordingly, after finding that plaintiff had been prejudiced by defendant’s spoliation, the court ordered that the jury be instructed that the defendant had failed to preserve evidence and that they may presume that such evidence was both relevant and favorable to the plaintiff.

Don’t wait for the reasonable anticipation of the duty to preserve. With Retain, you’ll be ready for any potential litigation or investigation by preserving all email and electronic communications within one unified archive. Retain provides organizations the ability to securely archive all electronic communication, including email, social media, and mobile messaging, both on-prem or on the cloud. This archived information can be easily accessed, searched, and published using the built-in eDiscovery tools.

To learn more about how Retain can help our organization be prepared for potential litigation and investigations.

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