In any kind of civil ligation, evidence is the key to winning a case — and that’s why there’s a rather lengthy discovery process that goes on in every business lawsuit.
As a company, you never want to have to tell the court that evidence that’s being sought in discovery — evidence that was in your control — has gone missing or been destroyed. Known as spoliation of the evidence, that can tilt the presumption in your opponent’s favor.
You need a clear plan that will keep your business out of trouble
Disputes are bound to happen over the years, and some of those may eventually lead to business litigation, so plan accordingly. With that in mind:
- Limit personal electronic devices. Make it clear that your employees should not use their personal devices for company business. It will be much easier for you to keep track of communications and preserve data if they use company phones only for business.
- Understand your duty to preserve evidence. It may start sooner than you think — and long before a lawsuit actually gets filed. You need to preserve any kind of documentation (including electronic) as soon as a lawsuit is reasonably foreseeable.
- Recognize how broad your duty may go: These days, you can’t just think about physical documents. Papers, contracts, letters and canceled checks are all important — but so are emails, text messages, voicemails, videos and data stored in the cloud.
- Have a litigation plan. When you know litigation is foreseeable or likely, you should have a plan in place that makes every relevant person aware of their duty to preserve documents, files, videos and other forms of evidence related to the issue. The clearer your instructions and the more timely they are distributed, the better.
Understanding the nuances of the law about what is expected of your company and preserving evidence in a lawsuit isn’t easy. Working with an experienced attorney is wise.