While reading a recent article in the Wall Street Journal, I was reminded how important it is for companies to be sure that the right people within their organization are informed of new and ongoing litigation and of the company’s obligation to preserve potential evidence. When a lawsuit commences, your attorney should send you a “litigation hold” letter, informing your company of its obligation to preserve documents that may be relevant to the lawsuit. Most people understand that this means that they can’t go shred a bunch of documents that might be relevant. What not everyone appreciates, however, is that the duty to preserve information goes well beyond that. Among other things, it requires companies to turn off their auto delete functions and to stop overwriting computer backup tapes that might contain relevant information.
In a current lawsuit between Apple and Samsung, the court learned that Samsung failed to turn off its email auto delete function when the lawsuit started. Emails continued to be automatically deleted and, of course, could not be produced in response to discovery requests. The court found that failing to turn off the auto delete function was a failure on Samsung’s part to satisfy its obligation to preserve evidence – something the court takes very seriously. Apple asked the court for an “adverse jury instruction,” and the court agreed. The jury will be told that the evidence Samsung failed to preserve should be assumed to be evidence that supports Apple’s position and undercuts Samsung’s position in the lawsuit.
Although this type of destruction of evidence is often inadvertent, courts are generally unforgiving and hold companies to exacting standards for the preservation of evidence. Employment litigation often involves email correspondence, sometimes going back years and sometimes critical to the outcome. If your company has been sued and you haven’t been instructed about evidence preservation, start asking questions!
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