Preserving Data for Litigation

On January 26, 2024, the Court of Chancery of the State of Delaware issued an opinion imposing sanctions on defendants for failing to preserve text messages. The sanctions included rebuttable presumptions against defendants at trial and a higher burden of proof for the defendants. The opinion raised concerns for many on the obligation to preserve data, counsel’s role in a party’s preservation and collection obligations, and what steps are necessary to preserve data when the threat of litigation arises.

Generally, any “party in litigation or who has reason to anticipate litigation has an affirmative duty to preserve evidence that might be relevant to the issues in the lawsuit.” As soon as there is a reasonable likelihood of litigation, counsel should issue a litigation hold informing a party of its obligation to preserve data. Practically speaking, parties are most often concerned with preservation of emails, hardcopy documents, and mobile data.

Of these categories of data, emails tend to be relatively easy to preserve and collect. Email servers tend to have sufficient capacity to hold a large number of emails without deletion, so parties are less likely to be deleting emails on a regular basis. To prevent data loss, parties should be informed of the obligation to preserve relevant emails and should disable any auto-delete functions. This may include contacting a company’s IT department if IT maintains company-wide auto-delete on emails. But barring a catastrophic event causing data loss, entire email servers of data are unlikely to be lost.

To read the full article, click here. 

About Potter Anderson

Potter Anderson & Corroon LLP is one of the largest and most highly regarded Delaware law firms, providing legal services to regional, national, and international clients. With more than 100 attorneys, the firm’s practice is centered on corporate law, corporate litigation, intellectual property, commercial litigation, bankruptcy, labor and employment, and real estate.