by Samantha L. Brutout, Esq.

PITTSBURGH – Does your standard litigation hold notice reference Blackberrys? If so, it is probably time to update it. As millions of employees continue to work from home because of the COVID-19 pandemic, corporate technology has completely evolved in 2020. Tools like Microsoft Teams, Zoom, and Slack went from being something used only in certain industries to being used by all different kinds of companies to connect employees and integrate work-flows when in-person collaboration became impossible. 

As a result, employees are now using different types of technology – and generating data – like never before. These changes in technology should be addressed in various information governance and data management policies, including updating the litigation hold notice to reflect types of data employees are generating and the devices being used to create that data.

Before a litigation hold notice can be updated to make sure the necessary data is being preserved, it is critical for corporate IT and legal departments to understand what types of data their employees are generating and what devices they are using to generate the data. Some key questions include:

• What devices do the employees use to conduct business? Desktops? Laptops? Mobile devices?
• Are the devices the employees use to conduct business owned by the company or the employee?
• Is the data on the devices owned by the company backed up somewhere other than the device itself? 
• If the devices are not owned by the company, does the company have a policy for retention of business-related documents on employee-owned devices?
• What kinds of programs or tools do employees use to conduct business?  Email?  Word documents?  Excels?  PDFs?  SharePoint?  Slack?  Text Messages?  Microsoft Team Chats?  Other instant messaging tools such as What’s App?  Other tools?
• Does the company permit business-related communications only on programs or devices that are supported or owned by the company?  In other words, does the company prohibit employees from using tools (such as instant messaging) that are not supported by the company or prohibit employees from having business-related discussions via text message or instant messaging on personal devices?

Once a complete picture of the types of devices employees are using and the data they are generating is gathered, this information should be incorporated into a litigation hold notice. Increasingly, courts are recognizing that it is impossible to preserve every single piece of data created by a company.

A litigation hold notice should be crafted to include all data potentially relevant to the litigation or arbitration. That obligation requires a complete understanding of the data employees are using. Without knowing what programs and devices employees are using, there is no way to make sure that data can be preserved if litigation is anticipated or occurs.  

Not having a complete understanding of what devices and programs employees are using and what kind of data they are generating can have potentially devastating consequences. If, after the issuance of a broad litigation hold notice, the company discovers employees were using a specific instant message program that the employees downloaded for free to discuss issues potentially relevant to the litigation and those messages have not been preserved, the company could face spoliation issues.

As such, knowing the devices and data sources employees are using to conduct business is critically important.  To put it simply, you can’t preserve something you didn’t know existed and you can’t preserve something that doesn’t exist.

COVID 19 has forced all sorts of technological changes on companies very quickly.  Making sure information governance and data management policies reflect those technological changes, including litigation hold notices, is a vitally important step in memorializing how those changes have impacted your business.

Samantha L. Brutout, Esq. is a partner at Dingess, Foster, Luciana, Davidson & Chleboski LLP, Pittsburgh, Pa. She can be reached at [email protected] or (412) 926-1816.