“Proceed With Caution When Deleting Data”

Good advice for paralegals, lawyers, & techies!

"As dependence on electronic communication has grown, lawyers and their clients have faced new and significant issues relating to preservation of electronic information.

"Electronically stored information is often recycled pursuant to a company’s ordinary course of business, for example, through a computer system that automatically deletes e-mail older than 60 days unless archived; or through a document retrieval system that overwrites metadata (such as data about the history of the creation of a document) each time an electronic file is accessed. Once a duty to preserve evidence arises, companies must act to halt the deletion or loss of potentially relevant electronic data.

"Deletion of electronic data is a significant risk for companies, and may lead to spoliation claims. It is often unclear when the duty to preserve arises — it can be difficult for a company to determine when litigation becomes reasonably foreseeable. And, in practice, suspending document retention policies or ordinary-course-of-business deletion policies for electronic data can raise significant headaches for a company, from halting its automatic processes to purchasing additional backup tapes to storing backup tapes that are no longer being recycled."