When you delete an email, do you know if that email may later be recovered? How about if you “tweet” an employee or business partner, may that data later be retrieved? Will your mobile phone carrier allow you to recover a copy of a text message? If you answered any of these questions in the negative, chances are your business’s data preservation policies are outdated. Proper data preservation practices are increasingly important as electronic data discovery issues more and more often plague individuals and businesses faced with litigation. Parties to litigation may face sanctions for spoliation when relevant evidence is deleted or destroyed, regardless of whether the destruction or deletion was intentional.  See Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 470-71 (Minn. Ct. App. 1997); Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011).

Against this backdrop of rapid technological advancement, a subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure convened in Dallas, Texas last month to gather information and make a recommendation on whether the Federal Rules of Civil Procedure should be amended to better address current data preservation issues arising in litigation in this new world of text messaging, “tweeting” and “Skyping.”(1) The subcommittee conference comes five years after federal discovery rules were first amended to address certain challenges arising with the storage and production of electronic information. Now, as technology continues to progress, new situations and questions related to electronic discovery continue to arise, and the subcommittee questioned whether those 2006 amendments can fully respond to current issues.

The discovery subcommittee invited lawyers, judges, and corporate entities, including Google, Inc. and General Electric Corporation, to join the conference and provide input that may be used to amend the Rules of Civil Procedure that govern court proceedings. The subcommittee provided three preliminary rule proposals prior to the meeting to facilitate discussion. The first proposal suggested amendments to the current discovery rules that would articulate highly specific procedures for electronic data preservation. The second proposal provided for a more general data preservation rule in the form of directives and objectives to litigants. The third proposal suggested no revision to the discovery rules, instead revising sanction rules to better address the spoliation of electronic data.

The conference ended with no clear-cut consensus on proposed amendments to the Rules of Civil Procedure. Conference attendees raised significant concerns that if specific procedures for data preservation were required as considered in the first proposal, then future technological advances may soon render that proposal obsolete, perhaps even before the amendment is codified. Similarly, if data preservation procedures are too vague, several attendees suggested that litigants will increasingly incur fees associated with seeking a court’s determination of the scope of one’s duty to preserve relevant electronic data. What is clear is that the issue of electronic data preservation will continue to be a hot button for the Advisory Committee for years to come, and businesses should continually ensure their data preservation policies are keeping pace with current technological developments.

Today, as more and more employees use email, text messages, and even “tweets” to communicate in the business world, it is increasingly important for an employer to implement and manage strict document and electronic data preservation policies to protect itself from potential sanctions during the course of litigation. Moreover, even those businesses with data preservation policies in place may be in need of updating those policies to address the increased use of mobile devices and social media sites.  As your business grows, so too does the potential for litigation. It is therefore imperative for any business to ensure its data preservation policies are not only established, but also kept current with technological trends. Although the most severe sanctions will be imposed only under the most severe of circumstances, accidental spoliation may likely lead to additional litigation costs necessitated by additional discovery, fines, adverse jury instructions and the exclusion of evidence.