Back in 1966, when I started defending antitrust cases, I always knew the documents I would receive most often were those with “burn before reading” emblazoned across the top. Also known as smoking guns, these pieces of paper always were -- and always will be -- what makes or loses a case, more often the latter.
In those dark ages, written documents or memos sometimes would disappear, leading to a charge of obstruction of justice when the information was required in court.
For instance, in one case, I represented a plaintiff on a trade-secret issue and asked the witness (who was also the defendant) where the documents he had taken from his former employer were. He said he no longer had them. I asked him when he was served the subpoena. “On Tuesday,” he said. “When were those documents destroyed?” I asked. “Late Tuesday, after I got the subpoena,” he answered. Case settled.
In this age of digital storage and electronic transmissions, the ghosts of old e-mails, Word documents and other files continue to linger on in company backups and even on hard drives. Moreover, they can come back to haunt parties involved in various court proceedings.
E-mails are some of the first documents that must be produced during a lawsuit’s discovery stage. This is covered in Rule 34 of the Federal Rules of Civil Procedure, updated last December, which outlines the requirements for requesting electronic communications for cases in federal courts; many state courts follow similar rules.
In the normal course of business, electronic communications create a “tree” of information. Backed by Rule 34, lawyers can demand any electronically stored information pertaining to their case that is a branch of one of those trees.
Just as with paper documents, relevant digital files cannot be deleted or otherwise kept from the proceedings. However, if a lawsuit requires correspondence or other files that already have been destroyed in the normal course of business, no foul is declared. Where people get in trouble is when they try to delete information the night before discovery begins.
While last-minute shredding is a no-no, taking the time during legal proceedings to sift through every little piece of saved electronic detritus can result in delays and frustrated judges. In one famous case, the defendant’s attorneys took their sweet time “finding” the pertinent information, which did not end up sitting well with the jury.
I recently was involved with a dispute where the judge was most perturbed about the need to go through megapiles of electronically stored information, especially since some privileged communications between the attorney and the client were included. The judge ordered the information pruned, causing major delays.
What to Keep
Record-retention programs really are a formula for record destruction. All organizations should have a policy about how long materials should be kept, and that policy should apply to electronic files as well as paper materials.
Most of us go through our days thinking we won’t be involved in litigation, but considering the number of contracts involved in a meeting, planners should be especially careful. Keep those documents that are imperative to your position. Consult with a legal adviser about the best way to maintain adequate records electronically and which ones can be trashed right away.
Now that many deals are carried out electronically, think twice before you hit the send or save key.
Jonathan T. Howe, Esq.,is a senior partner in the Chicago, St. Louis and Washington, D.C., law firm of Howe & Hutton Ltd., which specializes in meetings, travel and hospitality law. Legal questions can be e-mailed to him at firstname.lastname@example.org.