E-discovery: Potential litigation looming, Now what?

In previous posts we briefly delved into the requirement to preserve and/or produce electronic information for electronic discovery, and the forewarning that the failure to do so can have dire consequences in the form of facing monetary fines from the Court overseeing the matter. This post aims to provide more in depth information regarding spoliation laws so that lawyers and clients do not fail to preserve a litigation hold which may bring sanctions that may entail substantial fines.

Courts may issue sanctions when spoliation (destruction of evidence) appears to be inadvertent, without any malicious intent, or without knowledge of e-Discovery laws. Very early into their burgeoning legal careers is when law students may be introduced to the Latin concept of “Ignorantia juris non excusat” which roughly translates to ignorance of the law excuses not. This legal principle generally holds that when an individual violates a law they were unaware of, they may not escape liability merely because he or she was unaware of its content. Although it is typically applied to criminal statutes, it has some relevance here.

Under the rules of civil procedure, courts have broad discretion to impose a variety of sanctions against a party that fails to produce evidence in violation of the civil rules. The limitation to this is that the discovery rules apply only to acts of spoliation that occur during the pendency of a lawsuit or following a court order. Courts also rely upon their inherent power to control the administration of justice to sanction pre-litigation spoliation. This authority allows courts to preserve their independence and integrity, since the destruction of evidence inhibits a court’s ability to hear evidence and accurately determine the facts.

Procedures to help avoid destruction of evidence

When it is inevitable that legal action will occur, a written legal hold communication should be sent to custodians of data in your office/organization. If there is no one tasked with this responsibility in your office/ organization, create a position that deals with record keeping and preservation of information such as inventory over company owned devices. Preservation helps ensure that no alteration or destruction occurs. Proper preservation may not only prevent disposal of old devices no longer in use, but it can also prevent pertinent metadata from being altered. Therefore, it may be extremely beneficial having proper procedures in place that keep records of all company-owned devices and immediately alerting custodians of pertinent data can lessen spoliation sanctions.

If on the flip side of a scenario where the opposing side has failed to preserve pertinent data, Digital Forensics Corporation can potentially retrieve ESI from devices that have experienced mechanical failures, logical failures and even physical damage such as crushing, water or fire damage. Never assume that data is unrecoverable, especially when your case is on the line.

Any imposition of spoliation sanctions can be significant. While understanding when the duty to preserve arises and the scope of what must be preserved is important, there are other actions that a company may take to avoid the imposition of sanctions for destruction of evidence. These include: offering adverse parties or likely adverse parties an opportunity to inspect any physical object in its post-accident condition; creating a photographic or video record of the evidence if it is necessary to discard or destroy physical evidence before a potential opponent has had an opportunity to inspect it; taking all reasonable steps to locate and preserve missing evidence, including tracing it to third parties; and knowing the applicable law regarding spoliation of evidence.

In certain circumstances, even the best efforts and intentions will still result in a finding that spoliation occurred. While the potential impact of such a finding cannot be ignored, remember that courts will closely scrutinize the conduct of the spoliator. Accordingly, evidence of good faith and reasonable attempts to comply with your duty to preserve, including a thorough and well-planned litigation hold sent to all custodians, including third parties like cloud service providers can afford a company with a valid and successful defense or at least reduce the severity and overall impact of the spoliation sanctions.

Ultimately, it is wise to consult the advice of experts that specialize in e-Discovery and digital forensics to ensure spoliation does not occur. Digital Forensics Corporation will assist in all aspects of e-Discovery including preservation and production of ESI. We can suggest guidelines for your office or organization to abide by, but the earlier an expert becomes involved, the more time and money may be saved, and the more favorable the final outcome may be.

More information:


  • Comment Link vwthjmcq Tuesday, 12 January 2021 18:03 vwthjmcq

    essays analysis https://essaywritinge.com/ - essay type
    essays about nature
    spongebob writing an essay write essays what is a nature essay

  • Comment Link Clicking Here Monday, 14 December 2020 23:27 Clicking Here

    Greetings! Very helpful advice in this particular article!
    It's the little changes that will make the most significant
    changes. Many thanks for sharing!

  • Comment Link read more from here Monday, 14 December 2020 23:16 read more from here

    I visited various web sites but the audio feature for audio songs current at this web site is genuinely fabulous.

  • Comment Link why not look here Monday, 14 December 2020 22:38 why not look here

    Helpful info. Lucky me I found your web site accidentally, and I am surprised why this twist of fate did not came
    about earlier! I bookmarked it.

  • Comment Link visit this link Monday, 14 December 2020 22:29 visit this link

    I have been surfing online more than 2 hours today, yet I never found any interesting
    article like yours. It is pretty worth enough for me.
    In my opinion, if all web owners and bloggers made good content as you
    did, the web will be a lot more useful than ever before.

  • Comment Link click here Monday, 14 December 2020 22:26 click here

    What's up, every time i used to check webpage posts here early in the daylight,
    since i like to find out more and more.

  • Comment Link is 150 mg sildenafil safe Sunday, 13 December 2020 22:21 is 150 mg sildenafil safe

    is 150 mg sildenafil safe http://droga5.net/

  • Comment Link additional resources Sunday, 13 December 2020 03:15 additional resources

    Thank you a lot for sharing this with all people you really realize what you're speaking approximately!
    Bookmarked. Please additionally discuss with my website =).
    We can have a link alternate agreement among us

  • Comment Link discover more here Saturday, 12 December 2020 04:50 discover more here

    Do you mind if I quote a couple of your posts as long
    as I provide credit and sources back to
    your webpage? My website is in the exact same area of interest as yours and my visitors would really benefit from a
    lot of the information you present here. Please let me know if this ok with you.

  • Comment Link learn more here Saturday, 12 December 2020 04:00 learn more here

    It's the best time to make a few plans for the longer term and
    it is time to be happy. I've read this post and if I
    may just I want to counsel you few attention-grabbing things or suggestions.

    Perhaps you could write subsequent articles regarding this
    article. I desire to learn more issues about it!

Leave a Reply

Your email address will not be published. HTML code is not allowed.

Legal Evidence Corp 9.8 / 10 1 based on 13 127 Trustpilot user reviews

Get Help Now

Thank you for contacting us.
Your Digital Investigator will call you shortly.