Avoiding Spoliation Sanctions in the New Universe of AI

• Pages: 21-21
• Date: 01 July 2023
• Author: Lauren Gregory Liepold
• Subject Matter: Civil Law

Published in Litigation News Volume 48, Number 4, Summer 2 023. © 2023 by the Amer ican Bar Association . Reproduced with pe rmission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in an y

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

litigant never wants to be o n the wrong side of a

Rule 37 motion for d iscovery sanctions. Rule 37

empowers courts to issu e various sanct ions rang-

ing from nanc ial penalties to judgment against

the offending pa rty. But it can be difcult to

navigate the evolving requ irements for preser vation of elec-

tronically store d information (E SI) with so many rapid devel-

opments in technolog y. Is your client using inst ant messaging

platforms such as Slack , Teams, Gchat, or Jabber du ring the

course of its day-to-d ay business? What about ne wly emerg-

ing arti cial intelli gence (AI) tools such as C hatGPT? Are

you asking your client the se questions and helping the client

take the proper precaut ions to avoid spoliation?

The rst order of busi ness is to dust off your sta ndard

litigation hold form and ma ke sure it has been update d to

address platforms a nd technologies specic to your client

and its line of work. (I rece ntly came across a lit igation hold

referencing oppy disks a nd CD ROMs!) Second, make sure

your client identie s the appropriate custodians for distribu-

tion of the hold notice, and help t he client distribute —as well

as track receipt and ack nowledgment of—th e memo. One

federal distr ict court found sanctions appropriate be cause the

two principals who dele ted and destroyed ESI were the type s

of persons likely to have relevant i nformation even thoug h

they did not receive a litig ation hold; the ESI at iss ue involved

text messages ; they owned their phon es as personal proper ty;

and they were not named a s defendants.

As counsel, it is al so your responsibility to become fami l-

iar with your client ’s document retention proce sses. Schedule

a document retention c all to go over in detail the various

platforms your client is u sing, identif y any auto-delete set-

tings, and ensu re that steps are taken to avoid automatic

deletion of electron ic data. It is import ant to take afrmative

action in this re gard and not to rely on your client’s self-col-

lection measur es. Counsel’s actions have be en found sanc-

tionable when counsel relied on ly on a principal’s statements

and his self-col lection, and failed to intervie w the custodian

keeping counsel from ide ntifying E SI, including Yahoo!

Chats and emai ls, resulting i n their destruction.

If you don’t understand how the tech nology works, nd

someone who does! To meet the obligation to be come familiar

with a client’s retention poli cy, counsel must speak w ith infor-

mation technology p ersonnel who can explain the syste m’s pro-

cedures and polic ies, one federal district cour t found.

It is also import ant to remember that this obligation is

not just a box to check at the begi nning of the litigation—it

extends throug hout the course of your case. As counsel, you

should continue to monitor your clie nt’s activity with resp ect

to technology to avoid sanct ions down the road. At least one

federal court ha s permitted an adverse inference when the

custodian sw itched to an encrypted messagi ng application

to exchange sensitive in formation after becoming aware of a

subpoena, ndi ng that this action was intended to fru strate

di sc ove r y.

Courts seem to apply t hese principles fai rly consistently

across technology pl atforms, whether e mail, text message,

instant mess aging, or other collaboration systems. O ne fed-

eral court re cently discussed the fact t hat defendants should

have known their set tings deleted their Slack message s and

that those messa ges contained releva nt information. A nother

ordered default judgment agai nst a party that failed to pro-

duce Google Workspace and Slac k documents.

Although AI to ols are so new that spoliation cases related

to them do not appear to have made it th rough the court

system yet, litigator s should follow the above framework in

connection wit h those tools. This may take some resea rch,

investigation, and d eep conversations with you r client’s

information tech nology team to learn exactly how to pre-

serve inputs and outputs f rom these tools, but that legwork

is worth it to avoid sanctions . Courts —and your opposing

counsel—wi ll expect you to do so. “To maintain the req-

uisite knowledge and sk ill, a lawyer should keep abreast of

changes in the law a nd its practice, i ncluding the bene ts

and risks assoc iated with relevant tech nology, engage in con-

tinuing study a nd education and comply with all continuing

legal education requi rements to which the lawyer is subject,”

advises the comm ent to ABA Model Rule 1.1.

If this feels a l ittle daunting, the key is to remember t hat

courts general ly understand that reasonable proactive effor ts

to preserve relevant in formation should be suf cient to avoid

sanctions. U ltimately, you will not be required to preserve

“every shred of paper, every e- mail or electron ic document,

and every backup tape.”

Avoiding Spoliation Sanctions in the

New Universe of AI

By Lauren Gregory Liep old, Litigatio n News Asso ciate Editor

SUMMER 2 023 • VOL. 48 NO. 4

21 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE