Evolving Guidelines, Risks: Electronic Storage of Reporters' Notes
Smallman, David B., Investigative Reporters and Editors, Inc. The IRE Journal
Whether reporters should retain notes, outtakes, and other unpublished material has long generated debate about the respective benefits and disadvantages of doing so if stories are challenged or litigation arises. While such data can show meticulous newsgathering techniques, corroborate accurate reporting, and memorialize crucial evidence, the same information can sink a case (or a career), revealing sloppy practices, fabrication, preconceived outcomes, or questionable tactics. Leaving aside aberrant instances of newsroom fraud and observation of basic rules that prevent its occurrence, journalists also should be aware of court decisions setting guidelines for retention of electronic records - both prior to and after litigation ensues - and the legal consequences of failing to preserve them.
A wealth of stored data
Reporters create information on a variety of electronic devices, such as PDAs, digital audio recorders and cameras, and computers. Other information, including hand-written notes, documents and photographs, are converted to digital form by scanning. Such electronic data is communicated via e-mail and related attachments. Large volumes of accumulated data can reside remotely on tape drives or mirrored on backup servers. all of this means that a huge reservoir of electronic data is generated by the newsgathering process in both obvious and subtle ways. Not surprisingly, litigants have become savvy about electronic document discovery and judges have defined the contours of what records must be preserved and when.
Knowledge of incidents' and 'threatened' suits
By the time a lawsuit is actually filed, the duty to maintain evidence relevant to the case is well understood. Until recently, it has been less clear what obligations attach to retention of records substantially prior to any actual claims or the filing of a complaint, and certain factors unique to journalists may come into play. For example, subjects of investigative reports increasingly engage in proactive measures to head off or influence stories prior to publication. As a result, reporters, editors, producers and their media counsel may have or will acquire knowledge of stored data that could be construed to contain warnings of incipient claims. Media insurers commonly request information about incidents that may give rise to lawsuits, as well as lawsuits actually brought or merely "threatened."
Scope of duty to preserve stored data
In Zubulake v. UBS Warburg LLC, a federal district court in New York (in a nonmedia context) specified broad guidelines for preserving stored electronic data. The court stated that "the broad contours of the duty to preserve are relatively clear" - it "extends to information that is relevant to the claims or defenses of any party, or which is relevant to the subject matter involved in the action."
The court further held that "[a] party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter." Importantly, the court goes on to state: "Once a party reasonably anticipates litigation, it must suspend its routine document retention/ destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents." Though the court excluded, as a general matter, "inaccessible backup tapes" used for disaster recovery, it did not exclude such tapes if information about 'key players' was known to exist on such tapes and the information was not otherwise available. …