September 2006 DOCUMENT PRODUCTION IN LITIGATION Evidence in modern litigation, even for cases involving relatively simple issues, invariably involves written communications or documents. As use of computers and email messaging become more common in business and everyday life, the requirement to produce documentary evidence to the opposing party in a lawsuit has evolved to include documents and messages created and stored electronically. These production requirements at times have included examination of a company’s computer hard drives or networks for retrieval of documents and email messages. Courts have struggled to find procedures for document production in an increasingly electronic age. Parties to a lawsuit have a duty to preserve all information that may be relevant to the issues in the litigation. If any relevant evidence is lost or destroyed, the party responsible for the loss of the evidence may face severe sanctions. We discussed the legal consequences of spoliation of evidence on our March 2006 Newsletter, which may be found on our website at www.lawatddp.com. The Courts have developed, and continue to develop, guidelines for litigation parties and their attorneys regarding the search for and preservation of evidence relevant to the lawsuit. Generally, the client and its attorney must conduct a reasonable search and inquiry to locate, preserve, and produce all sources of relevant information. A party may no longer wait for a request from the adverse party to produce relevant information. Both the Federal and Colorado Rules of Civil Procedure require that all parties to the litigation identify or produce early in the case all documents relevant to the disputed issues in the case. Part of the obligation of litigation counsel to preserve evidence is to investigate the documentary evidence in the client’s possession and, in appropriate cases, to assess with the client the document management habits and processes of the client. In terms of electronic evidence, including email correspondence, the attorney may need to inspect and print hard copies of email correspondence. In addition, the email messages should be preserved, which may require that copies of the correspondence be placed on a disk and delivered to the attorney. One step that should be taken promptly after receipt of notice that litigation has been filed or that a lawsuit may be commenced is to inform employees that all email and electronic documents, as well as printed documents, must be retained until further notice. However, simply giving this notice may not be sufficient, as employers in some cases have been held responsible, after the fact, for failing to take additional affirmative steps to safeguard the evidence for the litigation. If you become involved in a lawsuit, or even if you only receive the threat of an action or become aware of the possibility of a claim, it would be wise to consult with your attorney about what steps should be taken to guard against the loss of potentially relevant evidence.
This Newsletter is provided for information purposes only. Accordingly, the information is general in nature and is not intended to address a specific issue or problem. The reader should seek legal counsel of his or her choice for specific problems. The receipt of this Newsletter does not create an attorney-client relationship with the author or the law firm of Dean, Dunn & Phillips LLC.
| 
