Apple recently made headlines with its announcement that iOS8 would be encrypted so that Apple would not be able to respond to requests for user data under the Stored Communication Act and/or warrants for data held on its users’ mobile devices. Instead, Apple can only access data stored in its users’ iCloud accounts.  In a similar move, Google announced that devices featuring its Android operating systems will be shipped with encryption turned on, rendering it impossible for law enforcement to access data from users’ devices by seeking it from Google. Under the encryption schemes now offered by Google and Apple, their smart device operating systems will limit the ability of Google or Apple to provide data residing only on the users’ device to third parties; that data will remain encrypted on the device and within the exclusive control of the user.

Predictably, law enforcement has been critical of Apple and Google’s announcements, expressing concern that the inability to access information from third parties could hinder criminal investigations.  However, from a civil litigation standpoint, this shift in the availability of data reinforces the need to timely act upon evidence preservation obligations so that critical data that may exist and may be in the exclusive possession of the opposing party is preserved and available to the parties in litigation.

The pre-litigation duty to preserve evidence is a longstanding aspect of common law which has been re-examined since the ESI revolution added new complexity to traditional discovery.  Generally speaking, in federal courts a party has a duty to preserve evidence when it reasonably anticipates litigation. As elegantly stated in the seminal Zubulake opinion, “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.  Florida’s state courts, however, have battled through muddled, conflicting and inconsistent precedent.  Some Florida courts hold that only a contractual duty, statutory obligation or discovery request triggers a duty to preserve. Other Florida precedent fixes a duty to preserve upon the filing of the complaint, or when the relevance of the evidence is reasonably foreseeable by the party.  The internally conflicted state of Florida’s preservation law is analyzed and criticized in this Florida Bar Journal article.

If you or your client anticipate that litigation is imminent or plan to file an action, sending your opponent a litigation hold letter is a critical step to ensure that your prospective adversary’s evidence is preserved.  Because of the apparent disparity in the law of Florida’s state courts and federal courts, there is no way to be sure which preservation standard will be imposed in your case before it is filed. Thus, the prudent course of action is to implement a litigation hold and demand your adversary impose such a hold as soon as litigation is reasonably anticipated. Apple and Google may have closed one avenue of discovery by distancing themselves from their users’ data, but a timely demand for a litigation hold can protect you or your client from the loss of critical data.