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WHAT DO YOU MEAN WE’VE BEEN SUED?! Second in a Series of Six Articles

You have noted the time, day, and method of service of the complaint. You have also internally calendared the response deadline calculated off the information in the summons, so what do you do next? Now is the time to read the complaint.

Again, your first instinct will be to list all of the reasons you are not liable to the plaintiff. There will be a time for that, but it is not yet. The purpose of your first review of the complaint is to determine who within your organization might have information regarding this matter and where within your organization data and other records are stored that may be relevant to the complaint. At first blush, this may seem rather simple. If the suit is over a particular contract, those responsible for the sales effort, the contract negotiation, and providing the goods and services under the contract should be relatively easy to determine and to list. Go ahead and prepare that list at this point.

Here is one reason why you need to do that now. In this day and age, we script our lives. We do it with emails, text messages, and social media. Once you have notice of the suit, you take on responsibility for preserving all records and other evidence concerning the matter. In a brief article like this it is impossible to discuss this thoroughly, but an example will illustrate the point. Let’s go back to our hypothetical about a contract suit. All the emails and text messages regarding the negotiation of and performance under the contract are potentially relevant to the lawsuit. These can reside in a lot of different places. And where they reside depends in large measure on the architecture of your company’s computer system. They can be found on servers, backup sites, work computers, personal computers, personal cellphones, company websites, employee Facebook pages, and the like. Identifying all the possible players within your organization will give you the ability to make sure that electronic information generated by, or sent to, these individuals is preserved.

And speed is important in this regard. Messages and other data are routinely deleted by backup processes and are sometimes simply deleted just to clean up an inbox. Destroying this information, even if done inadvertently, can actually open you up to a number of different sanctions even if the underlying lawsuit has no merit. Immediate steps need to be taken to preserve this information. A further complication is that folks typically combine both personal and business information on a variety of devices. Some of these belong to the company and some of these belong to the individual. But the information is still arguably subject to the company’s duty to preserve it. So, this can involve taking information off personal computers, tablets, and cellphones. Also, do not forget your voicemail system. And while a bit old fashioned, many records still are kept in paper form and these need to be preserved as well, official files as well as employee “shadow” files.

There are outside contractors who can help you preserve the electronic information. And where it appears that a lot of information has been generated in connection with the matters in the complaint, you may wish to consider outsourcing this function rather than trying to do it internally. But, again, speed is critical because the data will change fairly rapidly.