If an Employment Discrimination Claim Crashes & Burns Are You Going to be Burned in the Fire? Best Practices for Electronic Discovery Preservation

http://ow.ly/9pu8E

An article by Jason Shinn posted on the Michigan Law Advisor website.

This article discusses a specific case, where preservation of eDiscovery became an issue, the case discussed is Evans v. Mobile County Health Department (PDF), (S.D. Ala. Jan. 24, 2012), and a link to the case is provided in the article.

The author points out two main eDiscovery tips as result of this case, that should be addressed by attorneys.  The article states,  "First, this case illustrates the important role that attorneys must play in assisting their clients to meet their judicial and ethical obligations to preserve digital information.

This point is reinforced by what the Court highlighted in ordering spoliation sanctions against the plaintiff. Specifically, the court noted that the plaintiff employee testified as follows:

Finally, although plaintiff testified that she was unaware of a court obligation not to destroy evidence and that she did not intentionally destroy her computer to cover-up unfavorable evidence, she also admitted that her attorney told her to preserve all relevant documents regarding her complaints of racial discrimination, which, of course, would include the emails she mentioned during her deposition.

Second, this case also highlights the need for legal counsel to provide meaningful assistance that is documented. In this regard, the court opinion does not offer any further insight beyond the preceding quote in terms of what was explained to the plaintiff about her scope of preservation.

Reading between the lines, I would be comfortable assuming that not much assistance or guidance was actually provided by the attorney as to preserving electronically stored information."