July/August 2016 Issue

Also in this issue: Significant Home Rule Case Invalidates Milwaukee’s Residency Requirement     |     Appellate Court Rules on Police Departments’ Disclosure Obligations Under the Driver’s Privacy Protection Act

Beware: The Duty to Preserve Electronic Evidence

06.30.16

Under Wisconsin and federal law, parties have strict obligations, even before a lawsuit is filed, to take reason- able steps to preserve evidence that relates to the subject matter of the litigation. This duty is especially important in an era when most of our communications are by way of email and most data is stored electronically. Federal law requires parties to take reasonable steps to preserve this electronically stored data in the anticipation or conduct of litigation. FRCP 637(e). This means that parties have a duty to preserve relevant information before a lawsuit is filed if litigation is reasonably foreseeable.

The need to preserve electronic data is important because, once litigation is commenced, a party has a right to this information from the other side. If the producing side claims that the requested communications or documents were deleted or lost, that party may face serious sanctions that range from dismissal of a lawsuit, judgment against it, or hefty monetary fines. 

Figuring what triggers ​“anticipation of litigation” is not as easy as one may think and can vary significantly case-by-case. Courts consider a variety of factors, including who within the municipality anticipates the litigation and the clarity of any threat of litigation. For an employer in a discrimination case, one court held that the triggering event arose before an employee filed a complaint because most of the employees of the organization believed the employee was going to file a lawsuit. In a personal injury case, the triggering event may arise upon receipt of a demand letter. 

What should municipalities do once they anticipate litigation? Best practices include taking steps to preserve data and issuing a litigation hold. With respect to preserving data, municipalities should make sure that any electronic data-deletion policies or programs are immediately stopped. A litigation hold notice is a useful tool to advise your municipality of the need to preserve electronic evidence. Ideally, this notice should be in writing and should be provided to the key players in the municipality, in addition to the records custodian. The notice should include clear instructions to stop automatic deletions and identify what documents should be preserved. It may also be helpful to remind the key players about the consequences for failure to comply with the litigation hold. 

Finally, it is important to remember that while most people think preservation requirements apply only to emails, that assumption is incorrect. The duty is broad and may apply to calendar entries, contact lists, employee cell phones, text messages, voicemail messages, hard drives, thumb drives, laptops, and social networking sites. 

The duty to preserve electronic data is constantly evolving. It is important for municipalities to stay on top of the changes and implement policies to avoid serious consequences down the road. 

— Kathryn A. Harrell