Electronic Discovery in Hotel Litigation: A Masters Class For Industry Principals
By William A. Brewer III Managing Partner, Brewer, Attorneys & Counselors | April 16, 2010
I once suggested in this publication that electronic discovery (e-discovery) can make - or break - a case in bet-the-business hospitality litigation. That column (http://hotelexecutive.com/business_review/190/managing-a-major-hotel-lawsuit-how-electronic-discovery-can-make-–-or-break-–-your-case ) generated widespread interest among industry owners, operators, managers and investors seeking to understand the importance of e-discovery and the vital role it plays in the litigation process. In this expansive follow-up column, I offer a "master's class" on the topic that discusses what industry principals should know regarding the preservation of evidence. I firmly believe that in this era of mega-cases, few things are more important than understanding one's obligation to collect, store and produce electronic information.
With the proliferation of electronically-created and stored information, discovery of electronic information ("e-discovery") is a complex and expensive part of any significant piece of litigation. What many business executives do not appreciate is that a party's failure to comply with the rules regarding e-discovery – in particular, those governing the preservation of electronically stored evidence – can lead to harsh penalties. Thus, it is critical that hotel industry principals – owners, asset managers, operators, lenders and others – understand their obligations to preserve relevant corporate records and, thereafter, to collect and produce such records to the opposing party after litigation has begun. As one court recently noted: "By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records, will inevitably lead to the spoliation [destruction] of evidence."
In addition to the federal statutes and rules that mandate the preservation of corporate documents of public companies and companies operating in specific industries, the obligation to preserve evidence, including electronically stored information, also arises from court-imposed preservation rules that apply to all companies, public, private, large and small. The key questions that executives must answer are:
- When does the duty to preserve evidence arise?
- What evidence must be preserved?
- How do I ensure that evidence is not destroyed?
Fortunately, the law governing e-discovery is developing rapidly, and courts have provided guidance to these and related questions.
The Duty To Preserve: Triggering Events