Issue link: http://read.dmtmag.com/i/732012
I DA U N I V E R S A L S e p te m b e r - O c to b e r 2 0 1 6 56 LEGAL LINE Continued from page 11 Robert McIntyre Wegman, Hessler and Vanderburg 6055 Rockside Woods Blvd. Suite 200 Independence, Ohio 44131 Phone 01.216.642.3342 (Offi ce) 01.216.403.0516 (Cell) e.mail: RWMcintyre@wegmanlaw.com Fast forward. In this electronic age, it is very diffi - cult to make electronic records disappear without leaving a trail. And if records are erased, even using the most sophis- ticated military-intelligence community so ware available to the public or on the black market, the electronic trace of the use of such "clean- ware" cannot be eradicated in civilian systems. Additionally, the physical destruction of hard drives, computers, laptops and even storage devices will not help, because trails of records are always being sent to the "missing" devices in other sending devices and systems that are not under the control of the "missing" device owners. is can lead to a legal conclusion that the electronic records in the "missing" devices or systems were willfully destroyed with the expected consequences. Simply put, the "Gosh, I ran over the (insert device) by mistake" will not fl y. Also, with the incredible amount of linkage between devices, the permanent disappearance of devices or fi les cannot be remotely expected or assured. e lesson learned the hard way in the above scenarios is that absolutely nothing in any record could create a situation more painful than the consequences resulting from being proven to have destroyed records. e most critical of these situations is when a dispute arises and one party sends the other(s) an "ESI" or "litigation hold" letter. is letter follows federal court and many state rules demanding the recipient to locate and sequester all electronic devices, systems, connections and the like to preserve records that might be sought in a dispute, whether it is a lawsuit, arbitration or administrative action. is is not simply a warning, but a demand that can be legally enforced by a court, to take affi rmative action to identify, locate and sequester any records that could be remotely related to the situation. is means that in any existing or subse- quently following adversary proceeding , every record identifi ed in the hold letter – and practically speaking, anything remotely close to the records identifi ed in the communication – better be located and sequestered from even accidental destruction. e rub is that while you are going to be honest and diligent, the other side may not be. If they are the antagonist, their planning may have included some subtle and presumed undetectable "tweaks" that might hurt them down the road. Don't be misled by planning a tit-for-tat response; that dog will not hunt. What is the answer? It is simple. With the availability of long-term electronic storage at low cost, be a compulsive hoarder. ere is no way to predict whether a long-stored record will hurt or help until a situation arises, and not having it or destroying it , however innocently, can be painful. My general rules, from years of litigation in all sorts of matters all over the country and overseas, are very simple: Rule #1: It is far better to have every possible record of a situation, and then be able to explain and argue what they mean, than to have records missing that might be "reconstructed" or "inferred to mean" something entirely diff erent and not good for your side. Rule #2: If you have all your records, and the other side does not, you have the fi rst advantage of the "truth" of the record. e second advantage is arguing that the "missing" records are part of the other side's notorious bad conduct. Rule #3: ( e "golden rule of disputes") If you follow the rules, and the other side does not, you have a far better opportunity to get their gold. As in most arenas where adversarial disputes are found, it is unfortunate that the bad conduct of a few has created harsh, costly and compli- cated burdens for the rest of the honest world. However painful this reality is, the best path is to trust your advisers and carefully follow the rules. You will not automatically win, but you will be protected from the other side automati- cally winning by capitalizing on your poor decisions and bad timing regarding your record keeping and "missing" records. ●