Electronic Discovery – Spoliation

As a litigation support professional, one of our responsibilities is to make sure we understand the Do's and Don'ts of dealing with electronic discovery. One of the issues we need to keep an eye on is Spoliation. Electronic documents collected, reviewed and produced in a litigation matter need to stay in the original condition throughout the process.

There are many potential areas of spoliation in a litigation matter, but my focus relates to the litigation support role. While the electronic documents are in our possession, we need to take special care to avoid changing the documents. One way we can do that is to store the electronic documents in an area on the server where the access rights are read-only. That way if a file is opened by a member of the legal team and they accidentally hit a key on the keyboard, the edit will not be saved.

Often times we end up in the position of having to remind the legal team about spoliation. If someone on the legal team asks you to change the contents of a file before it is produced, you should push back. Their request may be innocent and without intention, but we need to remind them about spoliation concerns and we can tell them that Judges have issued sanctions in the past for spoliation.

The attorney may have a good understanding of spoliation concerns, and ask you to change the file anyway. I did have an instance a long time ago, in the early years of electronic discovery, where the attorney asked me to delete the contents of several cells in an Excel worksheet before we produced the Excel file in native format. I pushed back. The attorney explained to me that he had specifically discussed it with opposing counsel and explained why he needed to delete the contents. They had come to an agreement that it would be okay. We couldn't produce the document in an image format like TIFF or PDF because there were formulas that opposing counsel needed to see.

My advice is that you keep the spoliation issue in the back of your mind as you work with the electronic data.

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