e -nuff! : Practical Tips For Keeping s From Derailing Your Case Presented by Jerry L. Mitchell

kasowitz benson torres & friedman llp INTRODUCTION has become one of the most important forms of communication in the business world One recent study estimated that there are approximately 850 million business accounts in the world Last year an average of 89 billion business s were sent each day Fighting over retention, destruction and production of s has become a major and expensive issue in litigation

kasowitz benson torres & friedman llp Is Dangerous Ineffective form of Communication –Per Dr. Albert Mehrabian of UCLA, Communication is: Tone38% Visual55% Words 7% –OK for facts or data –Doesn’t work for opinions, feelings, sensitive issues

kasowitz benson torres & friedman llp is Dangerous (con’t) People will say things in an they would never say in person or in a letter Creates exhibits you will see again at your deposition Lawsuits can be won and lost, and even powerful politicians brought down, by the content of, or the failure to preserve, s

kasowitz benson torres & friedman llp Have A Written Policy Notice that computer and system are company property and that company monitors Content restrictions Treatment of confidential information Back-up tapes –Archival –Disaster recovery

kasowitz benson torres & friedman llp Have A Written Policy (Con’t) Retention/Destruction –Balance business needs vs. litigation risks –Specific retention requirements may apply –Preservation obligations in litigation Enforcement

kasowitz benson torres & friedman llp Train Your Users Cover policies –Obtain acknowledgement Limitations of Etiquette –Proof read/spell check –Don’t use text-style abbreviations –Check attachments twice Traps –Auto-fill/Auto-correct –Reply all

kasowitz benson torres & friedman llp Train Your Users (con’t) Traps (con’t) –“ Recall ” What the recall says: “John Jones would like to Recall this message” What the recipients actually see: “Stop whatever you are doing and read the last from John Jones word by word to find out where he screwed up”

kasowitz benson torres & friedman llp Preservation Obligations In Litigation Major issue in litigation today Issue a litigation hold when you reasonably anticipate litigation –What is “reasonable anticipation of litigation”? –May trigger limitations –“Work Product” privilege claim may trigger duty Put it in writing to anyone involved in the transaction at issue

kasowitz benson torres & friedman llp After Litigation Hold In Place Halt auto-deletion of s Monitor compliance with litigation hold –Be informed of potential sources of electronic data –If necessary, take possession of sources of data Keep data in its native format Document your preservation efforts Consider issuing a request to opposing party to preserve relevant data

kasowitz benson torres & friedman llp Failure To Preserve - Spoliation Elements: –Whether party has a duty to preserve the evidence –Whether that party negligently or intentionally spoliated evidence; and –Whether the spoliation prejudiced other party’s ability to prosecute or defend the case

kasowitz benson torres & friedman llp Failure To Preserve – Spoliation (con’t) Consequences: –Jury instruction Adverse inference Presumption –Monetary Sanctions –Exclusion of evidence, claims or defenses –Death Penalty Sanctions

kasowitz benson torres & friedman llp Lawyers Are Not Immune Not all communications are privileged s can be produced in certain types of cases, such as legal malpractice Consider purging red-line notes and draft versions of documents (not subject to litigation holds) Limit communication with experts

kasowitz benson torres & friedman llp Related Electronic Discovery Issues Personal devices/ addresses –Must include them in your litigation hold if used for business purposes –Sanctions have been imposed for failure to preserve when relevant and responsive –Can ISPS be subpoenaed to obtain personal s? Instant messaging Address these in your written policy!

kasowitz benson torres & friedman llp Conclusion Q & A Session Send me your doozy s Jerry L. Mitchell, Partner Kasowitz, Benson, Torres & Friedman LLP 700 Louisiana, Suite 2200 Houston, Texas