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Electronic Records
In Arthur Andersen LLP v. United States, 125 S. Ct. 2129, 235 (2005), the Supreme Court acknowledged the importance of records management policies that provide for the routine destruction of unneeded records under ordinary circumstances. It is, however, common knowledge that such policies should ordinarily be suspended once an investigation or litigation is reasonably anticipated. This is normally accomplished through the imposition of a 'litigation hold,' the process of notifying employees of their obligations to preserve all potentially relevant records while continuing the routine destruction of non-relevant active and archived data. This may be a company's first line of defense against claims of spoliation or obstruction. See Brady and Cohen: Achieving a Useful Litigation Hold, National Law Journal (July 26, 2005).
The failure to suspend routine purges of records in the face of litigation has contributed to the imposition of sanctions as high as $1.45 billion on companies, Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., Case No. 502003CA005045XXOCAI (Fl. Cir. Ct. 2005), as well as substantial fines on individual, non-compliant employees, U.S. v. Phillip Morris USA, Inc., 327 F. Supp.2d 21 (D.D.C. 2004) ($250,000 apiece). It may also result in prosecution and imprisonment. See United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006) (reversing conviction).
Implementing a 'litigation hold' is not the simple matter it might seem. The challenges are both human and technical. Understanding them may help oppose the admission of harmful records, avoid claims of spoliation and obstruction of justice, and exploit the carelessness of adversaries.
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