Proper document retention and collection are hot button issues for many clients and courts. In addition to maintaining and preserving emails and electronically stored documents, parties to litigation or potential litigation must take steps to preserve information stored on their employees' phones, iPads, and other personal communication devices. Remember that almost all electronic information, even if deleted, may be recoverable through forensic analysis. The remarkable consequences of failing to protect this information include potential criminal penalties.  

On April 24, 2012, the U.S. Department of Justice instituted a criminal action against an individual for intentionally deleting text messages regarding pending litigation against his employer. That employee was arrested and later released on April 25 on $100,000 bond.  

After allegedly learning that his electronic files were to be collected by a vendor, a defendant's employee allegedly deleted a text string from his iPhone containing more than 100 text messages with his supervisor. Some of the texts (which were recovered forensically) allegedly included sensitive information regarding the subject of the litigation. That employee faces a maximum penalty of 20 years in prison and a fine of up to $250,000 for each count.  

When you have reasonable anticipation that litigation is pending, it is important that you issue a legal hold letter to all employees with potential access to relevant information, including information on personal communication devices. We are happy to work with you to create an appropriate litigation hold that takes into account relevant cost, privacy, and liability reduction issues. Additionally, we are available to help provide an appropriate document retention policy to assist your determination of what records you must retain and how long you must retain those records.