Garett Padilla on IP law panel at NAM-WOLF
The National Association of Minority and Women-Owned Law Firms (NAM-WOLF) was held in Minneapolis this week, and Thomson Reuters Product Specialist in IP Solutions Garett Padilla took part in a panel discussion titled “Fact or Fiction: Legal Myths About Technology and IP Law.” He spoke on such topics as whether or not deleted electronic data can still be used as evidence and the importance of a company document retention and destruction policy.
Padilla stressed that once you hit the “delete” button on your electronic data and then empty your deleted items or recycle bin, those documents can still be recovered. The only way to truly delete data from a computer is by melting the hard drive, according to Padilla. He also said that following a company’s document retention and destruction policy will not protect one from getting in any trouble when it comes to electronically stored information (ESI). A company’s basic duty to preserve ESI is generally the same as its duty to preserve hard-copy documents. Companies and other potential litigants have a duty to preserve all relevant information (both electronic and hard-copy) as soon as they know or reasonably anticipate that they will become involved in litigation or a government investigation. Some examples he cited were:
- Qualcomm Inc. v. Broadcom Corp., where the court ordered the plaintiff to pay $8.5 million of the defendant’s attorneys’ fees and costs for failing to produce tens of thousands of emails and documents that were requested but intentionally not produced during discovery.
- Treppel v. Biovail Corp., where the court ordered the defendant to search for and restore several email back-up tapes and conduct a forensic search of one of its executive’s laptops, all at its own cost, because the defendant failed to adequately preserve relevant ESI.
- Northington v. H&M International, where H&M had no document retention policy and adverse jury instructions were given and led to court sanctions.
Finally, Padilla said that simply telling clients not to delete evidence is not enough. Attorneys must also comply with discovery obligations. A party’s discovery obligations do not end with the implementation of a litigation hold. To the contrary, that is only the beginning. It is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel and client must take some reasonable steps to see that sources of relevant information are located.