This is a guest post from Barclay T. Blair, author of Information Nation and head of the information governance practice at Forensics Consulting Solutions LLC.
“The fact of the matter is that this would all have been prevented if they had just called and said, ‘Destroy the tests,’” said a baseball official, who spoke on the condition of anonymity because he was discussing drug-testing information. “All they had to do was make a call,” said the official. “There was nothing more complicated than that.”
“Rodriguez Is Revealed, but What About Everybody Else?,” Michael S. Schmidt, Feb. 10, The New York Times
What do professional baseball and e-discovery have in common? A perfect setup for a joke — and for this story. But I’ll focus on crafting the story and leave the punch line to you (take your best shot in the comments).
In any case, these worlds came together in a fascinating way this week when Alex Rodriguez (a New York Yankee and the highest-paid player in baseball) admitted that he took performance-enhancing drugs in earlier seasons. Embedded below is A-Rod’s admission of use in an interview with Peter Gammons.
His admission followed a recent report in Sports Illustrated by Selena Robers and David Epstein, “Sources tell SI Alex Rodriguez tested positive for steroids in 2003.”
Stories involving baseball and steroids are nothing new, but this one is of interest to those working in information governance. It illuminates a critical question:
When are we legally required to preserve business information that we would normally destroy?
In this case, routine drug tests were administered by the baseball players’ union. Following the tests, in accordance with the union’s collective bargaining agreement with Major League Baseball, the test records would normally be destroyed. However, in this case the confidential test results were apparently not destroyed on schedule, and in fact were still in existence months later when the federal government came knocking and seized them. This has led many commentators to ask why the test results were not destroyed on schedule.
According to a statement by Donald M. Fehr, executive director of the players union, the test results were not destroyed because the federal government issued a grand jury subpoena about a week after the tests were conducted.
“The short answer is that in November, 2003, before that could take place, a grand jury subpoena for program records was issued.”
-Major League Baseball Players Association press release, Feb. 9
Some have suggested that the union should have been able to complete the destruction during the week between the test completion and the issuance of the subpoena. I don’t know anything about the internal procedures of the union, or what is entailed in the destruction process, so this may or may not be true.
The law supports Mr. Fehr’s point — that upon receiving a subpoena, the union could not destroy business records related to the subject of the subpoena, even if those records would ordinarily be destroyed in the ordinary course of business.
However, a more interesting hypothetical question is this: Should the union have preserved the test results anyway, even without the subpoena? This is a question that trips up many organizations, and one that everyone working in information governance should be able to answer. Although I can’t answer this question for the players union, we can look at what the rules are and how they affect you.
The law is pretty clear on the issue. We generally have a duty to preserve potential evidence even before something “official” happens, such as receiving a subpoena. See, for example, Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 175 (S.D.N.Y. 2004), which states, “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to the litigation or when a party should have known that the evidence may be relevant to future litigation.”
In other words, the requirement to suspend the destruction of evidence when you “should have known” or can “reasonably anticipate” litigation potentially starts the clock on information preservation much earlier than it would if you waited for a subpoena, a court order, or some other external event.
Many organizations fail to understand this requirement, and have paid the price in fines, sanctions and unfavorable litigation outcomes.
The takeaway? Make sure that your legal hold processes have a clear process for “triggering” a legal hold notice that ensure that evidence is properly preserved. Also, make sure that process kicks off the preservation early enough in the litigation or investigation cycle. The penalties for failure in this area can be stiff.