Much has been written and discussed about the topic of spoliation. By now, virtually every litigation support professional knows that there can be dire consequences for failing to preserve relevant evidence when there is an obligation to do so. In extreme cases, those dire consequences can include the entry of default judgment or the granting of jury instructions permitting the jury to infer from a party’s role in destroying or failing to preserve evidence that the evidence would have been harmful to that party’s case.

The risks of spoliation can be largely avoided or mitigated if a party has in place a solid records retention policy and a good legal hold process. However, a recent study by the Cohasset Associates indicates that:

• 40 percent of organizations do not include electronic records in their records retention schedules (survey item 2.1)
• 51 percent of organizations do not have formal email retention policy (item 2.5)
• 44 percent of organizations do not include electronic records in their system for records hold orders (item 3.3).

See 2007 Electronic Records Management Survey, A Call for Collaboration, by the Cohasset Associates and co-sponsored by AIIM and ARMA available online free of charge.

What does this mean to litigation support professionals? Probably several things, including:

• Litigation support professionals need to be aware that there are appreciable chances that their clients or parties adverse to their clients may not have had the procedures in place to avoid deleting or destroying electronic records that they had an obligation to preserve. Litigation support professionals should educate themselves on ways to audit productions to determine if there are missing electronic records, for example:

• Determining if e-mails sent from one party to the other prior to litigation are produced by both the sending and receiving organization
• Using appropriate technology to check to see if electronic copies of produced paper records are also produced where it is highly likely the paper copies would have been printed by that organization from electronic records

• Law firms and corporate legal departments have lots of work to offer in these areas. ALSP members might bring this survey to the attention of their organization’s management as part of a suggestion to offer legal advice in these areas in addition to offering litigation-related services.