Don’t Let Data Disappear: Preserving Electronic Evidence

By Jeremy Grivensky, Esq.

Even before a lawsuit is filed, individuals, businesses, and organizations in Pennsylvania have a legal duty to preserve information that may be relevant to potential litigation. Failure to do so, known as “spoliation,” can lead to harsh sanctions such as fines or even dismissal of the case. This article outlines when the duty to preserve arises, particularly as it relates to electronically stored information, and the potential consequences for non-compliance.

Individuals, businesses, organizations, and other potential parties to a lawsuit have a duty to preserve relevant information—electronic and hard copy—as soon as they know or reasonably should know: (1) litigation is pending or likely; and (2) discarding the information would be harmful to other parties to the pending or likely litigation. The duty to preserve evidence extends not only to information that might be beneficial to one’s case, but also to evidence that could potentially harm their position.

A party’s duty to preserve may arise in several common circumstances:

• The party begins to seriously consider filing a lawsuit.
• The party sends or receives a credible threat of litigation, like a demand or cease and desist letter.
• The party is served with legal documents, including complaints, writs of summons, and subpoenas.

Whenever you believe a lawsuit is likely, you should consult a civil litigation attorney as soon as possible. Consulting an experienced civil litigation attorney early on is advisable to navigate these obligations effectively, determine whether a threat of litigation is credible, and evaluate an appropriate response.

Once a duty to preserve arises, you would work with an attorney to consider the scope of information to be preserved. The duty to preserve encompasses original (or “native format”) digital files (including Microsoft Word documents, videos, and emails) in addition to any copies maintained in non-editable digital formats, like PDFs. Generally, “metadata,” or “data about data,” must be preserved as well. This includes data about an electronic file, like its author, creation date, and edit history.

Automatic deletion systems are often a point of contention in disputes over electronic data preservation. Most individuals and organizations use software with features designed to automatically delete old data to create storage space for new data. For example, most cell phones automatically delete stored text messages after a predetermined period, and most popular email software (including Gmail and Microsoft Outlook) works similarly. These convenient features could pose issues for parties under a duty to preserve, if information relevant to a pending or likely lawsuit is automatically deleted. This risk extends to other electronic records, like security camera footage, which may be automatically overwritten.

Failure to properly preserve evidence is called “spoliation.” If a party fails to preserve information relevant to a pending or likely lawsuit, an opposing party may request sanctions from the Court.  Spoliation sanctions may include monetary fines, shifting data recovery costs, adverse jury instructions, or possibly dismissal or default judgment.

When facing litigation, understanding and adhering to your duty to preserve potentially relevant evidence is key. Failure to do so may severely damage your case and could even result in monetary penalties. By consulting a civil litigation attorney early on and ensuring compliance with preservation obligations, parties can mitigate risks and navigate litigation more effectively.

Jeremy Grivensky is an associate attorney at Gawthrop Greenwood who primarily practices in the Litigation Department. He joined the firm in 2022 after graduating magna cum laude from Temple University Beasley School of Law, where he was a Beasley Scholar and an award-winning editor of the Temple Law Review. Jeremy was named to Best Lawyers^®: Ones to Watch in 2024 as well as to Top Lawyers by Main Line Today and Daily Local News. For more information, contact Jeremy at jgrivensky@gawthrop.com or 610-696-8225.