Preserving Physical and Electronic Documents
In the event when litigation may be expected in the future, it is essential that the relevant documents must be preserved and this not only extends to physical documents but also electronic documents.
It has changes the duty to preserve documents in the sense that it applies now to both physical and electronic documents and further since storage of electronic documents is much easier, hence the overall ambit of the duty has enhanced manifolds.
Spoliation may be defines as an act of altering, hiding, fabricating, destroying or withholding of any evidence which may be required in a particular legal proceeding through a reckless, negligent or intentional act.
Examples include deleting of SMS which can act as evidence, tempering of electronic evidence, destroying physical evidences such as letters, not producing a document which can act as evidence.
Yes, the attorney does need to learn about e-discover issues due to proliferation of electronic evidence and the increased role of these in the various legal proceedings.
While the traditional ambit of ‘competency’ for lawyer was focused around knowledge of substantive law but with the advent of technology this notion has been altered to include ‘technology competence’ which is most visible in the representation. Hence, new aspects such as using technology as an aid for presentation of case, e-discovery, protecting client information, using technology to offer better services to client have assumed importance.
It refers to the obligation on the legal team which has the client’s confidence that it cannot repeat the client to any individual outside the legal team without seeking prior consent with the client.
The main issue ethical issue is whether to protect privacy of the client or maintain transparency by giving out confidential information. Also, the reputation of client may be harmed in such cases while a media trial is also likely.
Information Governance, Identification, Preservation, Collection, Processing, Review, Analysis, Production, Presentation
The obligation for a party who is aware of the litigation is to preserve the documents available in both physical and electronic form so that they could be produced in court at as and when desired.
In accordance with Section 26, it is imperative that disclosure of all relevant information must be made on a voluntary basis.
The law firms need to have a sound retention policy in place to manage records storage and destroying the same. Usually, a record is to maintained for a period of 5 years before destroying. Also, duty to preserve must not be violated. Besides, for destroying data and records pertaining to a given client, permission from client may be required.
What is Spoliation and its Examples?
The document retention plan ensures that all relevant documents which may be possibly required in case of future litigation shall be preserved with the expected retention time period of 5 years.
Sanctions are not applicable if the destruction is on account of events that are beyond the control of the concerned party.
Interrogatories refers to a formal investigation process carried out by either the parties or their lawyers with the purpose of determining if the facts stated by each of the parties are actually true or not. In this process, access to certain documents may be granted in order to verify the claims made.
Since the interrogatories must be answered, hence during this process, the party to whom the interrogatory is addressed to may provide additional documents for review or disclose the existence of certain information which then can be located.
Rule 40 deals with scheduling of trials and hence it can be understood as to when the case would actually come to trial and based on the time at hand, the electronic discovery process can e continued.
Privilege review refers to the stage where the documents originally considered as “Privilege” are subject to a thorough scrutiny based on which a decision is undertaken as to whether the privilege status is to be maintained or not.
Privilege documents especially pertaining to the legal advice and communications cannot be provided to the other party.
Inadvertent disclosure tends to arise when the lawyer tends to disclose a confidential or privileged document by mistake to the other party. Since the other party knows that disclosure may have been inadvertent, hence such material should be returned back promptly.
In accordance with clawback clause, a party which has made inadvertent disclosure can demand that such material be returned back without changing the privileged status of the same.
Redaction refers to making changes or edit in the documents submitted which may contain some privileged or confidential information which ought to be removed.
The claims for privilege are made on the basis of a each document and blanket claim on a set of document is not given. This claim may be made as early as possible and also before the start of the trial. It can be done by the document holder or the lawyer representing the same. Notice needs to be given to parties regarding the same.
The purpose of the privilege log is to list down the various documents that have been termed as privilege and regularly updating the same so that it may be readily ascertained whether a document under A is still privileged or not and also relevant details about the privileged document.
Elements found in privilege log are as follows.
- Document Type
- Document Author Name
- Document Recipients Name
- Date of Document
- Document Description
- Document Subject Matter
- Type of privilege claimed
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