Personal and Corporate Responsibility for Searching, Preserving and Producing Information

In March 2009, a court noted that a corporation’s failure to adopt appropriation information polices can results in potentially costly legal sanctions. While sanctions themselves may or may not be substantial, the legal fees leading up to the sanctions will likely to be weighty. See, Phillip M. Adams & Assoc. L.L.C. v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (N.D. Utah. Mar. 27, 2009).

This decision and other recent holdings serve notice that it is in technologist’s best interest to bring potentially sub-standard retention policies or irresponsible data retention practices that may result in loss of data to the attention of their legal and business archiving/eDiscovery counterparts. The courts, by holding corporations responsible, are certainly acting within the dictates of logic. A corporation deploying a solution that seamlessly allows for additional search, preservation, or production burdens without imposing additional burdens individual employees may be in a stronger position to assert that they fall within the ambit of safe harbor.

Technologists who knowingly withhold such information from their legal and business counterparts, place their employers and their employment at risk. While many grey areas exist as to what constitutes a failure of policies/practices to synchronize with systems, there seems to be clarity on one thing: when policies and practices are in-place, but the systems fail to retain data, a potentially sizable legal problem may arise for the entity.

Technologists are not policy or legal experts, but it is arguably within their domain of expertise to inform the legal and business creators of these policies about the technological feasibility. Moreover, it is evident that a company’s position around discovery is a great deal stronger when a particular employee is responsible for the execution of the preservation, search, and production of information. However, the reality is that placing additional burdens on already overworked employees is a fiction and the information is not likely to be preserved. In addition, companies that elect to place the burden for implementing data retention or preservation orders on their employees–effectively placing the operational execution of preservation, search and production at the mercy of an individual employee’s practice–are making a potentially bad decision.

The extent of personal liability for an individual responsible for ensuring that the corporation policies, practice, and systems operate to some standard is still yet to be established. Irrespective of the legal finding, it can potentially impact your attractiveness to an employer.