According to the “Federal Rules of Civil Procedure” (FRCP), organizations have a “Duty to Preserve” all Electronically Stored Information (ESI).
*Important Update as of December 2015* – A new version of Federal Rule of Civil Procedure book went into effect December 1, 2015. Subsection 37(e) replaces the previous subpart in its entirety, and features a new title: “Failure to Preserve Electronically Stored Information.”
In addition to this amendment to the previous rule, Rule 37(e) is 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." The implication of the new law is clear: social evidence is given at least equal weight and import as other forms of ESI such as email and documents.
Link to full FRCP text https://www.law.cornell.edu/rules/frcp/rule_37
“The amendments to the Federal Rules of Civil Procedure (FRCP) describe the duty to preserve potential evidence when litigation can be reasonably anticipated”
This presents a unique set of issues when an organizations is involved in litigation, because the duty to preserve requires organizations to preserve email and other electronic communication. This means that you must be able to quickly and easily access, search, place litigation holds and publish electronic communication data, otherwise, your organization could face fines, sanctions and other similar penalties.
Recent “Duty to Preserve” Court Cases
Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13574, (S.D.N.Y. 2004) ( Zubulake V), outlined the duties of counsel to preserve potentially relevant evidence. This 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 Phillip M. Adams & Assoc., LLC v. Windbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16, 2010) In this case, the court reaffirmed its earlier holding regarding the trigger for defendants’ duty to preserve, namely that “in late 1999 the entire computer and component manufacturer’s industry was put on notice of a potential for litigation regarding defective floppy disk components (“FDCs”) by the well-publicized settlement in a large class action lawsuit against Toshiba.” Accordingly, for defendant MSI’s failure to uphold its duty to preserve, the court found sanctions were warranted.
Viramontes v. U.S. Bancorp, No. 10-761, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011) This case reiterates that organizations need not keep electronically stored information (ESI) for legal or regulatory purposes until the duty to preserve is reasonably anticipated. As with other evidence, ESI cannot be intentionally destroyed. In fact, businesses have an affirmative duty to preserve relevant ESI.
Apple Inc. v. Samsung Electronics Co., LTD, Case No.: C 11-1846 LHK (PSG), Slip Op. (N.D. Cal. July 25, 2012) The primary focus of this 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 Defendant had failed to preserve evidence and that they may presume that such evidence was both relevant and favorable to the plaintiff.