Spoliation: When the Past Poor Information Governance Strikes
Keeping business records is not only critical for any business operation, it is the a legal requirement when it comes to certain categories of records. Records pertaining to taxation, personnel matters, business registration, court decisions settlements , summons, meeting minutes, etc are by law expected to be maintained by businesses of whatever nature.
The early days of any business are quite unstructured especially to those businesses that could be struggling to establish themselves. Even though the business activities may not be many, there could be evident lack of structured record-keeping practices. Some businesses tend to keep everything and yet others tend to destroy too early. Whichever way, this is a issue of Information Governance.
As the organization grows, so are interactions with other existing businesses, personalities, government, etc. Some of the issues handled may end up in court leading to the latter ordering the business to produce records pertaining to the issue in court. Some legal representatives may demand more than just that leading to the court to compel the organisation to produce all the records, some stretching back to its early years. Failure to produce the records may be met with dire legal consequences.
The expectations are that the organization has always maintained records in their completeness ( a critical feature in admissibility of the records), accuracy and that their officialdom is not lost (signed original as well as authenticated copies). Failure to meet this first test may cast doubts on the organization side of argument in this case in question. Furthermore, the court may also order an information audit of all the records of the organization- which would in this case include electronic as well and paper records. If it is established that gaps exist, then it is very possible for the court to order for the charging of the company executives. This happens mostly when the case in question is highly of public interest and it is perceived that the organisation may have destroyed records relevant to the case. This is known as Spoliation. In other words: it is is the destruction of legal evidence that could have been used in a lawsuit.
While case law clearly requires legal holds when litigation is reasonably anticipated, courts have begun to reach further back into parties’ histories
to examine what the parties did with the information at issue even before legal hold obligations arose.
Most courts have stopped short of censuring parties for past sins not presently before the court; nonetheless, all courts are beginning to consider these behaviors when examining difficult, present-day facts that are ripe for determination.
Here in Kenya, and across most world countries spoliation happens every now and then. it is, however, crucial to know that the consequences may be dire in certain circumstances as depicted in the following case:
A Hypothetical. Consider the following fact pattern: A court is considering a motion for spoliation sanctions brought against two parties, defendants Alpha and Beta, who both suffered catastrophic data losses prior to producing documents in the case’s discovery The court confirms that Alpha had good information governance1 practices: Alpha had created an accountability framework and ensured appropriate behavior in valuing, creating, storing, using, archiving, and deleting the company’s information; regularly destroyed data no longer needed to meet compliance obligations or in the ordinary course of business; and implemented a legal hold policy that, when anticipating litigation, informed custodians of the need to retain certain data, turned off the automatic deletion features of the document retention policy, and halted the recycling of relevant backup tapes.
Beta, in contrast, had no prior information governance program and no workable legal hold practices. Alpha did ‘‘everything’’ and Beta did nothing; regardless, both lost relevant information.
Based on the emerging case law, the parties may be sanctioned for the loss, but the specific sanction applied to each is likely to be different. Why? Because a party that can point to a comprehensive information governance program—even one that includes an ‘‘extraordinary’’ retention/deletion program that deletes e-mails within days of being sent with no record whatsoever—may be in a better position to refute allegations of intentional information destruction in the face of active litigation than a party that failed to implement any proactive information management measures regarding the information at issue.
Establishing culpability will include scoping through all the records- paper/manual as well as e-records. It is normally a tedious exercise and it may cost the organisation a lot in terms of time lost ans well as ther reputation. Time is lost if the court slaps the organisation with litigation hold. This is the term used to describe a case where the court orders that the organisation surrenders mostly the electronic records including storage devices for forensic examination. It further implies that records in question can not be subjected to change whatsoever. In fact, the organisation can not add, remove, edit, destroy or dispose any of the records in question (under litigation hold). The implication is lost time as well as business that the records pertain to.
Organizations without proper governance on their records are likely to find themselves at loggerheads with the law.
To avoid the above situation, organisations are expected to maintain plausible records i.e, organized and complete records that can pass the legal test. This includes also electronic records.
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