Wednesday, January 20, 2016

Think Before You...Delete

By Lishel Bautista

In this age of technology, we don’t have to look any further than our smart phones to get access to our emails, social media accounts, and records.  We communicate by text messages and voice texts.  We collect photographs, videos, and audio recordings that are all accessible in the palm of our hands.  As easily as those messages were sent and those recordings were taken, they can just as easily be deleted.

In 2015, the United States Supreme Court adopted amendments to the FEDERAL RULES OF CIVIL PROCEDURE.  The amendment to Rule 37(e), pertaining to the preservation of electronically stored information, should serve as a reminder of the duty to preserve evidence.

The Rule states that when a party “knows or reasonably should know that there is a substantial chance that a claim will be filed,” the party has a duty to preserve all relevant evidence that is in its possession or control. *1  That duty to preserve evidence is not limited to the time period after the lawsuit is filed, but extends to the time period when the chance of litigation becomes “more than an abstract possibility or an unwarranted fear” and is reasonably anticipated. *2  When the duty arises, a party must take reasonable steps to preserve all relevant evidence, including that stored in an electronic format. *3

Rule 37(e) of the Federal Rules of Civil Procedure, as amended, addresses a party’s failure to preserve electronically stored evidence that cannot be restored or replaced.  The amendment also prescribes remedies for the failure to preserve such evidence.  If the evidence is lost due to negligence, then the court may order measures to cure the harm or prejudice, caused by the loss of information. *4  If the evidence is lost knowingly or maliciously because the party intended to prevent the adverse party from obtaining the electronically stored information, then the court may order measures that are far more severe, including dismissal of the lawsuit if the plaintiff breached the duty to preserve evidence or judgment by default against a defendant that breached the duty. *5

The consequences for deleting or destroying electronically stored evidence that a party has a duty to preserve can be harsh.  If litigation is reasonably anticipated, before you hit “delete” on your computer or smart phone, make sure you take a moment to consider whether you have a duty to retain and preserve the information.  If you find yourself in litigation, you may be glad you did.

*1  Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 20 (Tex. 2015); see also Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015).  

*2  Brookshire Bros., 438 S.W.3d at 20 (quoting National Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex. 1993)); FED. R. CIV. P. 37(e).

*3  Brookshire Bros., 438 S.W.3d at 20; FED. R. CIV. P. 37(e).

*4  FED. R. CIV. P. 37(e)(1).

*5  FED. R. CIV. P. 37(e)(2).

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