Legal Brief: Counsel's Responsibility in the Age of Electronic Delivery

     In the age of electronic communication, the preservation of electronic documents should be on the top of any potential litigant's list. In addition, lawyers should beware since the duty to preserve falls on both litigants and counsel. A recent article in Los Angeles Lawyer from the July/August 2010 issue entitled "Alt-Delete" stated that, "judges have made it clear that ignorance is no longer an excuse for spoliation of electronic evidence." Courts have defined "spoliation" as the "destruction or significant alteration of evidence, or the failure to preserve evidence for another's use in pending or future litigation."

   California, specifically, applies a burden-shifting approach that requires the accused spoliator to disprove any prejudice. First, the party moving for discovery sanctions based on spoliation of evidence must make a prima facie showing that the alleged spoliator in fact destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense. Once this showing is made, the burden shifts to the alleged spoliator to disprove prejudice to the movant. In other words, the alleged spoliator would have to prove that it was still in possession of other documents which would allow the movant to still make his case, thereby disproving any prejudice to movant resulting from any documents that the alleged spoliator may have destroyed. See Williams v. Russ, 167 Cal. App. 4th 1215, 1226-27 (2009).

   Cases make clear that failure to properly preserve electronic evidence is a breach of an attorney's  professional obligations as well as a breach of the atoorney's duty to provide competent professional service to the client. Counsel who breach their dual duties place themselves and their clients at risk for sanctions. So, what should be taken from this by attorneys? Make sure you have personal knowledge of the steps your client is taking to implement a litigation hold, be actively involved in this process, and make sure that they comply with the legal requirements of preservation of evidence.

From Katya Mezek