How to determine when to enact a litigation response plan
What is a trigger event?
A trigger event is an indicator to an ediscovery professional that a litigation matter or regulatory investigation is likely to follow, when then triggers the duty to preserve potentially relevant evidence. Essentially, a trigger event is the first domino in the chain-reaction that is litigation response and ediscovery.
The duty to preserve data after a trigger event is critical, because in civil litigation, justice depends on complete information. If a party fails to recognize a trigger event and doesn’t implement preservation efforts quickly enough, critical evidence can be lost or spoliated. Without that evidence, the court hearing the case may be unable to discern what actually happened between the parties. Therefore, the court has the authority to impose costly sanctions against a party that fails to preserve evidence. These sanctions can range from monetary penalties to jury instructions about the loss of evidence or even judgment against the spoliating party.
Just as critically, an organization that has been wronged, or wrongfully accused, needs complete and accurate information so that it can prosecute the case or defend itself.
But a whole host of situations could, hypothetically, result in litigation. How does an organization decide which of these events in fact triggers the obligation to preserve electronically stored information (ESI)? The critical moment occurs when a party can “reasonably anticipate” that litigation will follow. This doesn’t, of course, happen in every disagreement. Some disputes are easily resolved; others — even if heated — are worth so little money that they are unlikely to result in litigation.
Trigger events range from the obvious to the nuanced and may occur when an organization:
- is served with notice that a lawsuit has been filed against it;
receives a preservation letter demanding that it retain evidence for upcoming litigation;
- discovers that a former employee has begun a business that likely violates a noncompete agreement;
- learns that an employee has complained about persistent sexual harassment in the workplace;
- or reads that an accident involving one of its products has resulted in a serious injury.
Some trigger events are black and white, while others are various shades of gray. As a rule, it is generally better to be cautious and initiate preservation too early. However, habitual over-preservation can cause an organization to retain everything — and thereby drown in unnecessary and outdated information.
Because trigger events can happen in any department or division, all employees need to be trained on how to recognize them.
But recognizing a trigger event is only the first step; without follow-through, that recognition is meaningless. When a trigger event occurs, an organization must take action to preserve information that is likely to be relevant to that dispute. A legal hold advising employees to retain information is a common first step in effective preservation. Organizations must also suspend their routine data-destruction policies.
In short, organizations that are aware of potential trigger events and that respond quickly and appropriately are likely to fare better in resulting litigation than those that do not.
A trigger event is the point in a dispute when someone can reasonably anticipate that litigation will ensue; it initiates the duty to preserve potentially relevant evidence.