Mark A. Willard

Article Summary:

The cost of document management and retention may be high, but inappropriate document destruction can be higher.

Document Destruction

Information that most people are not even aware of is proving a rich source of damaging information in legal disputes. This information, called metadata, is part of all electronically created documents and is accessible only in the electronic form of the document. It contains information about the identity of the author, all recipients, creation and modification dates, when the document was read or opened by recipients, when it was printed, and any revisions made with the software's tracking function. It can tell an opposing attorney who knew what and when they knew it.

The cost of producing these documents in a legal dispute can be staggering - millions of dollars in a complex dispute. Whether the documents actually contain admissible evidence is unimportant. If the opposing party requests documents even remotely relevant, the business will have to produce them, unless it can prove that doing so would be an extraordinary hardship.

Companies can reduce the cost of document production by developing, documenting and consistently enforcing a document retention policy that specifies what kinds of documents should be kept, in what form and for how long. This policy should cover both electronic and hard copy documents and all hardware used by employees, including network servers, desktop, laptops and handheld computers and other wireless devices with text messaging capabilities. The rule of thumb: destroy or delete a document unless there is a business or legal reason to keep it.

The cost of retaining information is high, but the failure to keep key business documents could be even more expensive. If a company that has even an inkling that it may be a defendant in litigation negligently or intentionally destroys relevant documents, the judge may assume, or instruct the jury that it may assume, the worst about what those documents contained. A plaintiff found to have intentionally destroyed relevant documents may have its case dismissed outright. Either side may be heavily fined for document destruction, including recycling backup tapes and throwing out old computers.

Faced with litigation, a business should immediately alter its document retention policy: identify all documents that may become relevant and instruct employees not to delete them or dispose of the hardware where they are stored; establish secure, separate files for electronic documents and data that have to be retained; disable automatic deletion programs to prevent destruction of potentially relevant information and disable automatic backup to avoid producing masses of irrelevant documents.

This information should not be relied upon as a substitute for individual legal advice.

Mark A. Willard is the head of the Technology and Intellectual Property Litigation Section of the Litigation Division at Eckert Seamans Cherin & Mellott, LLC. He is also Chairman of the firm's Technology Committee. Mr. Willard focuses his practice on civil litigation matters, where he has an extensive background in complex commercial litigation, multidistrict litigation, class action litigation, technology litigation, patent, trademark and copyright infringement litigation, derivative shareholder litigation and securities fraud litigation. He is also a faculty member of The National Institute for Trial Advocacy.

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