Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/120734
Rock A litigation hold requires parties to preserve evidence relevant to a legal dispute. by Meredith A. Kapushion PRESERVATION of Evidence M Meredith A. Kapushion is an associate in Jackson Kelly PLLC's Denver office, where she works with the firm's Occupational Safety and Health Practice Group. She can be reached at 303-390-0520 or via email at makapushion@ jacksonkelly.com. 32 ine operators are familiar with their obligations to keep certain records as required by the Mine Act, but are often surprised to learn that they have additional obligations to preserve documents and the evidence. Whenever litigation is anticipated, an operator — and any other party involved — has an independent obligation to preserve relevant evidence. This can come into play whenever an operator chooses to contest a Mine Safety and Health Administration (MSHA) enforcement action or when an operator (or its individual employees) becomes involved in an MSHA investigation. Indeed, any time litigation is anticipated, the duty is triggered. This is part of a broader duty to prevent the spoliation of evidence that arises any time litigation is anticipated, regardless of whether that litigation is with a federal agency or any other private or public party. The duty to preserve evidence is a duty owed to the court, and it attaches when a party knows or "should have known" that the evidence may be relevant to future litigation. A party must make sure that all sources of potentially relevant information are identified and a "hold" put into place to preserve the information. A litigation hold is essential to satisfying the duty to preserve in modern day litigation. This is a basic notice that should issue from within a company (or at counsel's request) to anyone involved with the dispute, directing them to preserve any evidence they may have or that they are aware of AGGREGATES MANAGER April 2013 that is relevant to the dispute. This is not simply a directive to management — a litigation hold should issue to everyone who might have information about the dispute, including anyone from hourly employees, temporary workers, and even former employees, up to the highest levels of management. Anyone who may reasonably be anticipated to have relevant information must be put on notice that such evidence must be preserved. In addition, any policies in place that result in the automatic deletion of material (for example, email mailbox size or date limitations) must be suspended. To make sure that the litigation hold is effective, the person or persons responsible for issuing the hold should follow up with the recipients to make sure that the scope of the hold is understood and that appropriate steps are taken. Because each operation or mine will have its own unique legal challenges, and its own peculiarities with respect to record-keeping, technology uses, and standard practices, implementing an effective legal hold will be different every time. It is also important to remember that "evidence" is not limited to documents, but may include anything from electronic files, pieces of equipment, photographs, audio and video recordings, and other types of objects and information. Why is a litigation hold so important? Apart from satisfying obligations to the court and ethical duties of "fair play," the penalties for failing to preserve relevant evidence can be severe. At the extreme end, the deliberate destruction of docu-