There’s a lot that happens between any triggering event and the (possibly) inevitable lawsuit against your business.
In the meantime, you need to be proactive about protecting any potential evidence you may have in your possession that’s relevant to the claim – good or bad. A slip-up that permits the evidence to be damaged or destroyed could have devastating consequences.
The discovery process will likely be intense and demanding
Both sides of a lawsuit are entitled to look at all relevant evidence, and they can request that evidence through the discovery process. It’s on you, however, to make sure that your company takes all the appropriate steps to preserve whatever may be needed, including:
- Physical evidence and documents (ledgers, photos, contracts)
- Digital documents (texts, emails, memos and private messages)
- Other electronically stored information (records, e-contracts, data dumps)
If you fail and the court determines that your company acted either willfully or negligently, that’s considered the spoliation of evidence. This is particularly common when it comes to electronic documents since many companies operate in a virtually paperless environment.
What’s the penalty for spoliation? Under Rule 37 of the Federal Rules of Civil Procedure, the court is then free to infer that the evidence would have directly supported the plaintiff’s allegations against you – and simultaneously deprive you of a rebuttal.
Issues like spoliation are why it’s so important for every business to have a litigation hold plan in place – and a set of rules to follow that will protect potential evidence when a lawsuit is likely. It’s always easier to endure the stress of litigation when you get experienced legal guidance early on.
