Electronic Media and The Duty to Preserve

Published on: 
01/30/2013
It might seem that nothing is more temporary than a quick email, text or Twitter message. Yet these messages are increasingly subject to a duty of preservation, whether that duty is for a lawyer or on behalf of a client.

As I noted previously, last summer the American Bar Association's House of Delegates added to Rule 1.6 on confidentiality a new subparagraph (c) requiring a lawyer to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

Although the language does not specifically impose a data-privacy requirement, that doesn't absolve lawyers from the responsibility to keep electronic messages confidential.

That's why email and text messaging could well rank as the No. 1 mission-critical communications medium in law firms. Electronic communication systems have gone beyond PC-to-PC applications on Microsoft Outlook and today involve a whole host of wireless platforms through cell phone services.

All of these platforms can be disrupted by natural disasters, facility power outages, hardware or network failure, or software of configuration errors — any of which could jeopardize the duty to preserve this information.

It is thus vital to make sure that email and other electronic media are part of your data recovery strategy. That strategy should include email backup or archiving solutions, as well as alternate email continuity service.

Such elements could include a tape-recovery system, electronic vaulting (the storage of large amounts of data, such as generated by the constant flow of email), and shadowing or mirroring (a synchronized process by which each email is automatically stored at a remote location). If such storage also involves a remote cloud location, ensure that applications have their own servers and that backup is replicated across different data centers.

Since 2006, the Federal Rules of Civil Procedure require producing not just paper but all electronic documents and data for trial, or face penalties from the court. That includes emails and other electronic messages.

In the 2004 precedent-setting case on this issue, Zebulake v. UBS Warburg, a federal judge in New York found that the employees of the defendant had deleted numerous emails relevant to the case after the defendant's legal counsel had issued a litigation hold, giving instructions to preserve all such electronic data. The court penalized Warburg and its counsel. Anyone who can be sued, including a law firm, has this same obligation to produce electronic messages in discovery.

Most significantly, the duty to preserve does not just mean big corporate lawsuits. One family law practitioner has suggested that if a person involved in a divorce takes down or changes a Facebook page or other social media posting that might provide juicy insights to opposing divorce counsel, it could constitute spoliation of evidence — and thus be a crime. Printing and saving screen shots of such postings before deleting them is a wise policy, in case they need to be produced in court.

Such concerns reinforce what many of us have already learned the hard way: Whether we like it or not, the Internet is forever, and for a lawyer, it seems that so, too, is the lawyer's duty to preserve what lurks in cyberspace.

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