The Dog Ate My Evidence: How to Avoid Sanctions for Spoliation
By: Kelly Sandill, Hon. Mike Engelhart, and Debra Ibarra Mayfield

An effective litigation hold can be a first line of defense against claims of spoliation or obstruction. Conversely, failure to properly implement a litigation hold can lead to the imposition of substantial sanctions against a company and its non-compliant employees. This article provides practical tips for young lawyers to implement when addressing the preservation of evidence and offers tips from the bench on what to do if you find yourself on the receiving end of a motion for spoliation sanctions.

Litigation Holds - A Dozen Do’s and Don’ts for Avoiding Spoliation in the First Place

1.  Develop a Designated Team - Have a designated person in the legal department who is responsible for preservation matters, and, ideally, develop an interdisciplinary team from legal, IT, and human resources to handle preservation obligations across all matters.  This ensures consistency and adequate attention to new and ongoing preservation obligations.

2.  Watch for Triggers - A duty to preserve arises whenever there is a reasonable anticipation of litigation.  This is an objective, not subjective, test and is not limited to receipt of a demand, lawsuit, or notice of a governmental investigation.  Make it a habit to ask yourself with every new legal event whether someone looking at it from the outside would perceive a substantial likelihood of litigation.

3.  Move Quickly - React in hours, not days.  Delegate tasks if necessary.  Keep a form document at the ready, but it is critical that you take the time to adjust any form to the needs of the particular matter. 

4.  Suspend Auto-Delete Processes - Be sure to suspend immediately any automatic purge or deletion processes for custodians and sources/material likely involved in the matter.  Communicate with IT to understand what auto-delete processes are in place so that you can accurately determine what processes need to be halted.  Remember to consider not just documentary sources, but also any sources of visual or audio data (i.e. surveillance cameras).

5.  Draft a Written Memo - Do not use phone, email, or in-person conversations as the means to convey preservation obligations. Follow-up meetings or phone calls are fine and often necessary, but do not let them take the place of a thorough, written hold memorandum. Remember that the hold notice should be something you would be willing to have in evidence before a court, as any privilege claims will likely fall away in the event of spoliation allegations.

6.  Define the Relevant Material - Don’t expect recipients to determine what they should keep, and don’t just refer to “all relevant material” or “all documents relating to” the matter at issue. You must get granular on what types of materials and information would be relevant, but be careful not to exclude materials that you might not have considered.  If outside counsel are involved, enlist their help in identifying particular items of relevance to the case or matter.

7.  Define the Audience - Carefully consider the universe of persons who should receive the hold notice. Do not limit the audience to just the names of individual persons you know were involved in a matter. Think broadly and focus on departments or working groups who could possibly have touched the matter or project.  Talk with supervisors to determine who may have been involved.  When in doubt, cast a wider net, but don’t just send the notice to “all employees” unless appropriate to the particular matter.

8.  Inventory the Sources of Data - Have you thought about cellphones and handheld devices? What about tablets, text messages, and voicemail? Backup tapes, hard drives, thumb drives, laptops, social networking sites, and home computers? You must think critically about potential locations and sources of relevant data. Keep a checklist of your company’s data sources (prepared with assistance from IT) to utilize in this step. Be sure to update the list on a regular basis, and check with IT before issuing any hold notice.     

9.  Track Compliance - Have recipients of the hold notice complete forms acknowledging receipt, indicating what types of relevant materials they possess, and confirming that they have provided copies of or access to all materials.

10.  Pay Attention as the Case Develops - Designate a person to check periodically as a case or matter progresses to determine whether new names or groups of persons have surfaced. Be sure that outside counsel has a process in place to advise this person when new names are identified in discovery (i.e. upon receipt of disclosures from opposing counsel or during deposition testimony).

11.  Conduct Regular Training and Interface with Departing Employees - Helping employees to understand the requirements for preservation of evidence and the downsides of failing to do so can foster a culture of compliance.  Conduct regular training on preservation practices, and be sure to include all employees, even the C-Suite. Make it a part of the exit process for any departing employees to complete an inventory of how and where his or her company information is stored.

12.  Respond in Writing to Preservation Demands - Use the receipt of a preservation demand as an opportunity to establish the parameters of what you believe is relevant and reasonable.  This puts the ball in your adversary’s court to argue otherwise, and can help in defending against spoliation claims.

Tips from the Bench - What to Do and Say When Your Evidence Has Gone Missing

1.  Be honest and remember the court has great discretion.

2.  Start at the beginning ? was there a duty to preserve?

3.  Know the details of what was destroyed, how, and when. Be able to explain what preservation measures were in place and to prove so, if necessary.

4.  Point out the lack of evidence of intent.

5.  Address any lack of prejudice (i.e. is the movant “irreparably deprived” of necessary proof), including timing of the motion and whether the missing evidence was requested in discovery.

6.  Suggest appropriate sanctions with a direct relationship to the spoliation that are no greater than necessary - See Fed. R. 37(e); Brookshire Brothers v. Aldridge, 438 S.W.3d 9 (Tex. 2014). 

Kelly Sandill is a partner in Andrews Kurth Kenyon’s public law and trial groups. She has extensive experience representing governmental entities and private businesses in high-stakes court proceedings at the trial and appellate levels. Her cases often involve claims for emergency and injunctive relief and attract media attention. In more than 16 years of trial practice, Kelly has been recognized as a Texas Rising Star for five consecutive years and routinely writes and speaks on new developments in the law.  She is a cum laude graduate of the University of Houston Law Center, where she served on the Houston Law Review and met her husband, Judge R.K. Sandill of Harris County’s 127th Civil District Court. 

Hon. Mike Engelhart has been the judge of the 151st Civil District Court in Harris County since January 2009.  Judge Engelhart is a 1995 graduate of the University of Houston Law Center, where he was an associate editor of the Houston Law Review.  He is board certified in personal injury trial law.

Debra Ibarra Mayfield is senior counsel for Enterprise Products Partners L.P. and the former judge of the 165th Civil District Court in Harris County.  She is a graduate of South Texas College of Law.

Views and opinions expressed in eNews are those of their authors and not necessarily those of the Texas Young Lawyers Association or the State Bar of Texas.

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