January 06, 2014

Preservation of electronic data will likely be required four times in covenant related litigation.

First is at the analysis of the former employee’s work computer. Second is at the analysis of the former employee’s personal computer. Third is at the preservation of the new employer’s computer equipment. Fourth, at the preservation of the former employer’s computer equipment in response to defenses raised by the former employee or the new employer.

The proper preservation of digital evidence in litigation is more significant than the preservation of its paper counterpart. Unlike paper that can sit harmlessly in its normal storage location, simply continuing to use a computer can destroy the digital evidence that it stores.

Amazingly, the simple decision not to delete anything is inadequate. The continued use of a computer can alter important metadata such as file system date and time stamps. In addition, continued use can overwrite dynamic system data such as virtual memory stored to disk. Normal update and maintenance routines can purge system data like internet browsing history and render deleted but otherwise recoverable data unrecoverable as a result of disk optimization routines.

Because digital data is so much more fragile than its paper counterpart, preservation is likely the most important step in litigation. If not performed at all or even not performed timely, relevant evidence can be lost. If not performed properly, relevant evidence could be inadmissible or rendered unobtainable at a later date. In either case, sanctions are both possible and likely.

In Gates Rubber Co. v Bando Chem. Ind., Ltd., 167 F.R.D. 90 (Dist CO, 1996), for example, an inferior preservation technique contributed to the award of monetary sanctions. In Zubulake v UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004), an adverse inference and monetary sanction were ordered when evidence was not preserved because counsel failed to adequately inform the client of its preservation duties and monitor the client’s preservation efforts. In Phoenix Four,

Inv. v Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. 2006), both client and counsel were ordered to split monetary sanctions resulting from destruction and late production of evidence. In Consolidated Aluminum Corp. v Alcoa, Inc., 2006 WL 2583308 (M.D. La. 2006), monetary sanctions were ordered because backup tapes were not preserved under the theory that they were inaccessible and not discoverable.

Since preservation is the first step that every litigator should take, a misstep can mean defeat before the enemy is even engaged. To avoid defeat before even beginning, there are several steps that litigators should take regarding preservation.

Author: Gregory L. Fordham, Fordham Forensics

• Founded Fordham Forensics in 2012
• Experienced computer forensic expert in trade secrets matters and accepted expert in numerous courts
• Live investigator and certified steganography investigator
• B.B.S. degree, Emory University in Atlanta; certified computer examiner, Security+; Microsoft® certified professional
• Can be contacted at 770-777-2090 or [email protected]

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