Don't delete that!

By Judy Lin

Scenario: Employee X is terminated from his position at UCLA after months of discord with his coworkers, from distressing conversations to angry e-mails. As he exits the office for the last time, he threatens his supervisor, "It's not over....See you in court!"

The supervisor — now concerned about potential litigation — heads to back to his own computer, searches for those e-mail exchanges and presses the "Delete" button, wiping the slate clean, he thinks, should a lawsuit ever occur.

The right thing to do? Wrong, according to campus counsel Amy Blum. Potential lawsuits — when reasonably anticipated — are cause to preserve information, not discard it. It's not just a matter of playing fair, but federal law requires it, said Blum, who guided some 300 staff and faculty from all parts of campus through the requirements and ramifications of what attorneys call "E-Discovery" during presentations on Oct. 1 and 2 at Covel Commons.

"Attorneys and their clients have become increasingly sophisticated in asking for e-mails," Blum said. And it's not just e-mail, she added. Electronically Stored Information, or ESI, also takes the form of documents in desktop computers, laptops or portable devices like Blackberries; spreadsheets; photos; videos; and even voicemail recordings and text messages. When should you save all this?

"The duty to preserve evidence arises when one reasonably should know that the evidence may be relevant to anticipated litigation," Blum said.

According to federal rules, pertinent information is that which is "regularly and routinely available in a party's day-to-day business operations." What this usually refers to is data currently on your desktop, rather than files or messages that have already been stored away in backup systems. To ensure that your unit is prepared in the event of litigation, Blum advised:

• Make sure you have clearly established retention and backup procedures for ESI. "You don't need to save everything forever," Blum noted. In fact, she advised, except for documents subject to the Records Retention Schedule, it's wise to save data for only as long as it's really needed.

• Back up data for the shortest time necessary to restore services in the event of a disaster.

• Don't mix up the uses of your disaster recovery back-up systems. If you use the system as an archive to fairly regularly retrieve information upon demand, it is likely to be viewed as active data and not a disaster recovery system.

• Once a determination has been made by counsel that preservation is required, work as a team to identify your unit's ESI. Remember to consider whether you use laptops, home computers or portable devices for work purposes. If so, they could contain potentially relevant information.

To ascertain the potential of a lawsuit on issues ranging from an employee grievance to an on-the-job accident, and for further guidance on the legal rules of preserving ESI, contact UCLA's Campus Counsel at (310) 825-2284 or Insurance & Risk Management (310) 794-8013. Selected details of Blum's presentation can be found here.