Counsel has an affirmative duty, arising out of an ethics requirement, to affirmatively prevent a business routine causing destruction of email that may be needed for a lawsuit that has not even been started yet.  You disagree?  Let's talk about it.

Electronic discovery is becoming more important each year.  When this is being written, in 2008, it is generally accepted that 92% of all business communications is done by electronic communications. By the time you read this article, the percentage will be higher.

Let's start by reviewing some basic concepts.  The following was written by KrollOntrack, which specializes in electronic discovery, and it is right on target.  KrollOntrack is a true expert.  They summarize the basic concepts of e-document discovery so well, the best thing to do to educate attorneys on the subject is to quote what KrollOntrack says.

• Electronic Evidence is Discoverable: “The law is clear that data in computerized form is discoverable even if paper ‘hard copies’ of the information have been produced…[T]oday it is black letter law that computerized data is discoverable if relevant.” Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995). See also McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super. June 16, 1999); Crown Life Ins. Co. v. Craig, 995 F.2d 1376 (7th Cir. 1993).

• Proportionality Applies to E-Discovery Requests: A party producing electronic evidence must be protected against undue burden and expense associated with the production. Southern Diagnostic Assoc. v. Bencosme, 2002 WL 31422863 (Fla. Dist. Ct. App. Oct. 30, 2002); Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. Dist. Ct. App. 1996); In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 360526 (N.D. Ill. June 15, 1995).

• Deleted Data Can Be Discoverable: Deleted electronic evidence is fully discoverable. Dodge, Warren, & Peters Ins. Servs. v. Riley, 2003 WL 245586 (Cal. Ct. App. Feb 5, 2003); Simon Property Group v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000).

• Business and Personal Data Can Be Discoverable: It is proper to order discovery of electronic evidence from personal hard drives. Superior Consultant Co. v. Bailey, 2000 WL 1279161 (E.D. Mich. Aug. 22, 2000); Northwest Airlines v. Local 2000, C.A. No. 00- 08DWF/AJB (D. Minn. Feb. 2, 2000) (Order on Defendants’ Motion for Protective Order and Plaintiff’s Motion to Compel Discovery); Northwest Airlines v. Local 2000, C.A. No. 00- 08DWF/AJB (D. Minn. Feb. 29, 2000) (Memorandum Opinion and Order).

• Defining Your Duty to Preserve E-Evidence: There is a duty to preserve evidence that parties know, or should know, is relevant to the ongoing litigation, including preservation of all data compilations, computerized data and other electronically recorded information. Kleiner v. Burns, 2000 WL 1909470 (D. Kan. Dec. 15, 2000); Danis v. USN Communications, 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000).

• Protocols for Proper Evidence Preservation: It is proper protocol in a case involving electronic evidence to appoint a neutral expert to create a “mirror image” of the electronic evidence. Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999).

• Spoliation Sanctions Defined: Failure to preserve email and electronic documents (whether intentional or inadvertent) is sanctionable as spoliation of evidence. Metropolitan Opera Assoc., Inc. v. Local 100, 2003 WL 186645 (S.D.N.Y. Jan. 28, 2003); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d. Cir. Sept. 26, 2002); Gates Rubber Co. v. Bando Chem. Ind., 167 F.R.D. 90 (D. Colo. 1996); William T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443 (C.D. Cal. 1984).

• Cost Shifting and Sharing: The producing party must normally obtain, translate, and bear the costs associated with the production of electronic evidence. In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 360526 (N.D. Ill. June 15, 1995). But see Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL 63190 (S.D.N.Y. Jan. 16, 2002) (setting forth an eight factor cost shifting protocol); Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439 (E.D. La. Feb. 19, 2002) (following Rowe protocol).

Where I want to concentrate in this article is the next to last point above:  Even inadvertent failure to preserve email can be sanctionable.  Consider Metropolitan Opera Assoc., Inc. v. Local 100, 2003 WL 186645 (SD, NY, 28 Jan 2003).  The court imposed liability on the defendants and ordered defendants to pay plaintiff's attorney fees because the defendants failed to preserve and produce electronic documents.  The court stated

“[C]ounsel (1) never gave adequate instructions to their clients about the clients' overall discovery obligations, what constitutes a ‘document’…; (2) knew the Union to have no document retention or filing systems and yet never  implemented a systematic procedure for document production or for retention of documents,  including electronic documents; (3) delegated document production to a layperson who ...and was not instructed by counsel) that a document included a draft or other non-identical copy, a computer file and an e-mail; . . . . and (5) . . . . .failed to ask important witnesses for documents until the night before their depositions and, instead, made repeated, baseless representations that all documents had been produced.”

Metropolitan says what many courts are now saying:

    1. There is an obligation on the part of corporate counsel to affirmatively advise their client --- even before anticipated litigation become actual litigation --- that there should be a reasonable system of e-document retention that may legitimately be the subject of discovery in anticipated claims.

    2. There is an obligation once litigation starts to tell the client to save e-documents that may be relevant.

It is unreasonable to expect a company to take every conceivable step to preserve all potentially relevant data for any possible case in the future, and the law does not require that .  What the current case law does require is that the party (and its attorney) to  take reasonable steps to preserve data reasonably related to the facts of current or anticipated litigation.  By "anticipated litigation" is meant there is a base of objective knowledge of evidence that litigation on a subject is likely.

KrollOntrack has two great products/services.  An Electronic DataViewer™ for electronic review of e-documents.  An Elecrtonic DataInvestigator™ to search for data.