It’s not a stretch for any litigation attorney to imagine this scenario: It’s Monday morning and you’ve just arrived at the office. As you sit down at your desk, the phone rings. It’s the CEO of a company you’ve represented for years. She’s frantic.
“Oh my God, we just got served with a lawsuit. I’m trying to understand the complaint. It looks like one of our employees is alleging sexual harassment because her supervisor sent her inappropriate emails for several weeks. Darn it! I knew there was something fishy about that man. I’ve called the IT guy in and I’m going to have him pull all emails from the supervisor’s email account and the employee’s email account and trash them all.”
Hearing the news about a lawsuit against your client didn’t cause any alarm. You handle suits like this every day. Her statement about destroying emails, however, has you panicked.
“No,” you tell her. “Absolutely do not do that.”
That was good advice. But what else do you need to do?
Give your client a quick primer on spoliation of evidence
Let’s be honest, your client’s knee-jerk reaction is not that surprising. Nobody wants to be on the receiving end of a lawsuit with potentially dozens of smoking guns.
Nonetheless, her idea to destroy evidence is a terrible one, and you need to get her to understand – and agree – immediately.
Like most laypeople, she’s probably never heard of the word “spoliation,” but she needs to become familiar with it quickly. In short, spoliation refers to any process that makes evidence invalid.
More important than her knowledge of some arcane legal term is her understanding that spoliation is a crime. In California, for example, destruction of evidence is prohibited by Penal Code section 135. It says:
A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.
She also needs to know that this crime, which applies to destruction of evidence in criminal and civil cases alike, is punishable by up to six months in jail and/or a fine of up to $1,000.
Implement a litigation hold strategy
Now that your client understands the consequences of destroying evidence, it’s time to implement a litigation hold.
In case your client has never been through this before, the concept is easily explained. Generally speaking, a litigation hold is a communication between a company’s legal team and its employees mandating that any and all evidence relevant to a lawsuit be preserved.
Many law firms and in-house counsel have standard litigation hold strategies in place for just these occasions.
Most importantly, these strategies should take into account:
Technically, a litigation hold should be implemented as soon as litigation is “reasonably anticipated.”
Entire books could be written on the precise meaning of “reasonable anticipation,” but in our scenario, the client has just learned of this new lawsuit by virtue of being served with a complaint. That means the litigation hold must go into effect today.
Concomitant with the decision to issue a litigation hold is the decision of who it should go out to.
Contrary to our client’s initial inclination to destroy all emails created by the Plaintiff and her supervisor, those emails actually need to be preserved.
If both of those individuals are still employed by the company, they absolutely must receive the litigation hold letter.
Also, anyone with routine access to relevant documents should get the hold letter. For example, if the company’s IT and HR departments can access documents that might be relevant here, those people should receive the litigation hold letter as well.
As the case progresses, other individuals may come to light who could be harboring relevant documents.
In our scenario, for example, perhaps the Plaintiff forwarded the offending emails to a few of her close friends at the company. If information like that comes to light, litigation hold letters should also go out to those potential recipients as soon as they are discovered.
Any time you send out a litigation hold letter, you need to reasonably describe exactly what it is you want the recipient to preserve.
In our scenario, we know the complaint alleges that some offensive emails were sent. It’s entirely possible, however, that there are other forms of evidence that will be relevant to this case. Things like voicemails, hand-written notes, texts, social media posts, and memos could all impact the case.
Thus, it’s important that you brainstorm the universe of potential evidence you want preserved before you send out the letter.
What if the client still wants to destroy evidence?
If your client is still inclined to destroy evidence after you’ve explained all of the above, then you have a true dilemma on your hands.
Most state ethical rules prohibit a lawyer’s acquiescence in this type of conduct.
California’s Rule of Professional Conduct 3.3, for example, requires candor toward courts. Subpart (b) of that Rule requires that a lawyer take “remedial measures” if she knows her client intends to take criminal or fraudulent actions with respect to a proceeding.
Recall that spoliation of evidence is a crime, thus triggering the “remedial measures” mandate. The comments to Rule 3.3 acknowledge that such measures might include a request to withdraw from representation.
Ultimately, the best course of action is to persuade the client not to destroy anything relevant to the lawsuit. After all, the evidence the client wants to destroy in our scenario may prove that the Plaintiff was the initial aggressor, or that the “offending emails” were actually quite harmless, or a million other things that will make the lawsuit easier to defend than it seemed the first time she read the complaint.
As with anything in the law, the best thing you can do for yourself and your clients is to be prepared for any situation.
On that note, if you don’t yet have a standard litigation hold strategy in place, there are several great resources available online, including sample litigation hold letters.