RIM on the Hot Seat: What to Expect When Testifying: Litigation Can Be Stressful, Intrusive, and Exhaustive-So It's Best to Keep Deposition and Trial Testimony Simple, Short, and Honest
Montana, John, Information Management
As spoliation claims become increasingly common in lawsuits, so, too, does the allegation that records and information management (RIM) programs are part and parcel of the spoliation. Claims in this regard generally fall into two categories:
1. The program was negligent or ineffective because it permitted destruction of material that should have been saved. The common allegation in these cases is that a litigation hold was either not properly in place or not properly enforced. Claims of this kind amount to allegations of gross negligence for failing to properly undertake a duty of preservation after the institution of litigation. Or, if the purported failure is claimed to be intentional, it is an allegation of willful destruction of evidence.
2. The program is itself a sham that was instituted as a device for depriving opponents in litigation of material to which they were rightfully entitled. This again amounts to an allegation of intentional, willful destruction of evidence.
In either case the organization's RIM professionals are likely to find themselves on the hot seat. An opponent contemplating spoliation allegations will investigate to determine if any evidence supports the allegations, and that will necessarily entail close inspection of the program and its implementation. The close inspection, in turn, will inevitably involve the personnel charged with making and implementing RIM policy.
If you are one of these people--a records manager, IT specialist, or the like--you may find yourself deep in the middle of things, and what you know and what you did or saw may be of great interest to the opposing party. You may, therefore, find yourself being asked to turn over documents and computer data, being deposed, or even testifying at a hearing or trial. This article will discuss the things you might expect to encounter should this occur.
Discovery: What Can They Ask to See?
One of the great surprises to the uninitiated is the degree of intrusiveness of litigation. If your RIM program is the subject of spoliation claims, virtually anything that is potentially relevant to those claims is fair game for the other side. All of your information management policies and procedures, records retention schedules, legal hold policies, and related documentation are discoverable, and you should count on the other side asking for copies of everything.
Do not make the mistake of thinking that any of these documents are privileged information in any way--they are not, and a spurious claim that they are will only serve to reinforce suspicions that your organization is playing games with the rules. Similarly relevant and discoverable are box listings, document management and record management system indices and listings, destruction lists, purge logs, and any other evidence of activities conducted pursuant to the program.
That's the easy stuff. There are many other things that a smart opponent will be interested in: e-mail, instant messages, and logs; voice messages, meeting minutes, and notes; and other informal data objects are all properly discoverable as well. They are also subject to a duty of preservation--once the issue of spoliation rears its head, items of this kind must be identified, segregated, and preserved until the issue is resolved or until the litigation is concluded.
If you are in any doubt whatsoever about how to handle these items--perhaps, even if you are not--legal counsel should be consulted. Loss, destruction, corruption, or alteration of these items after they have become relevant in a lawsuit would undoubtedly give rise to a very strong reaction from the other side--and very likely from the judge as well.
Another surprise for the uninitiated is the degree to which lawyers and paralegals are industrious and detail-oriented. Large lawsuits often involve production of very large volumes of records and electronic data. …