Delete Is a Myth: ESI, Data Preservation, and Attorney Client Privilege with Tom O’Connor | Risk Matrix Episode 156

Risk Matrix #156: Delete Is a Myth: ESI, Data Preservation, and Attorney Client Privilege with Tom O’Connor

“The duty to preserve arises when you have a reasonable likelihood of litigation. A lot of people think it only arises when I’m sued. Not true. The onus is on the people who own the data to preserve it when they think there’s a reasonable likelihood they might get sued.”

Most safety professionals think their data obligations begin when a lawsuit is filed. They are wrong, and the cost of that assumption can be significant.

In this episode Dr. Logan F. Martin and James Junkin sit down with Tom O’Connor, Director of the Gulf Coast Legal Technology Center, to discuss what safety professionals need to know about electronically stored information, data preservation, and attorney client privilege after a workplace incident.

KEY TAKEAWAYS

• Delete is a myth. When you delete something, you are changing its name and moving it to another location on the system until that storage space is needed. Deleted data eight times out of ten is not really deleted. When you take additional steps to remove it, you leave a trail that any forensics examiner can identify. A judge can then instruct the jury to count that as a strike against you.
• Your duty to preserve arises before anyone sues you. A slip and fall where the worker says he is fine still triggers a duty to preserve data for a reasonable period. Any point where a company knows or reasonably should have known there is a likelihood of litigation triggers the obligation. The de facto standard in most corporations is save everything.
• CC’ing an attorney does not create privilege. Attorney client privilege covers attorney work product and legal strategy, not the underlying facts or evidence. The moment you forward a privileged incident investigation to a hiring client or third party, the privilege is destroyed. James’s recommendation: have serious injury and fatality investigations directed by counsel from the start.

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