At every newsroom legal seminar we give, a reporter or editor always asks, “Should we be saving our notes?” In light of news organizations’ increasing reliance on electronic devices to create and store information, as well as a series of recent cases and guidelines addressing the scope of a litigant’s duty to preserve electronic documents, this perennial question deserves a fresh look.
To Save or Not to Save
If litigation arises, reporters’ notes can be a curse or a blessing. Media lawyers have long debated whether and for how long their clients should retain such notes. One recent case, Suzuki Motor Corp. v. Consumers Union,1 demonstrates how plaintiff’s counsel can utilize unpublished contemporaneous information to fend off summary judgment in a libel action. In Suzuki, the Ninth Circuit relied on unpublished materials to hold that the plaintiff had raised a genuine issue as to whether the Consumers Union had made two of the challenged statements with actual malice.
However, disposing of reporters’ notes is no guarantee of victory either. In Brown & Williamson Tobacco Corp. v. Jacobson,2 where the Seventh Circuit affirmed a jury verdict in favor of the plaintiff on its libel claim, the panel stated that the defendant’s destruction of interview notes and annotated source materials was “[t]he most compelling evidence of actual malice submitted to the jury.”3
While there is no clear consensus about the wisdom of preserving notes and other source materials, those who counsel the media generally agree that it is crucial for a news organization to adopt clear document retention policies and then adhere to them consistently. A haphazard approach to preserving notes might come back to bite a media defendant by creating an inference of intentional destruction that could, under the reasoning of Brown & Williamson, serve as proof of actual malice. The failure to implement and then consistently follow an official, written document retention policy can cause similar problems by raising questions about why the policy was not followed in a particular case.
A Brave New World
These days, reporters create information on any number of electronic devices, including PDAs, computers, and digital voice recorders and camera. Other materials--handwritten notes, documents, photographs--are often converted into digital formats. Much of this information moves around the newsroom via e-mail, or gets stored locally on zip or external hard drives or memory sticks. Large volumes of accumulated data may also reside remotely on tape drives or be mirrored on backup servers. All of this means that a huge reservoir of electronic data is generated in the newsgathering process in both obvious and obscure ways.
As a result of these operational developments, new questions have arisen regarding whether, when, and how to preserve or purge newsgathering materials. One set of such questions relates to the quickly evolving rules governing discovery of electronic data. The following brief review of the parameters for preservation of electronic data established in recent case law and standards developed by non-judicial bodies provides a starting point for further analysis.
Developments in the Law of Electronic Discovery
As more businesses and individuals have come to rely on electronic devices and modes of communication to create, store, transmit, and process information, there has been a marked increase in the number of “electronic discovery” disputes--and a corresponding jump in the number of judicial decisions addressing the subject.
One recent and much-discussed decision, in Zubulake v. UBS Warburg LLC,4 set out specific guidelines for preserving stored electronic data. The court held that “[a] party or anticipated party must retain all relevant documents (but not multiple copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.”5 Significantly, the court went on to state that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’” to ensure the preservation of relevant documents.6 Though the court excluded “inaccessible backup tapes” used for disaster recovery as a general matter, it held that such tapes were covered if they were known to contain information about “key players” that was not otherwise available.
Other courts are now citing Zubulake or refining their own rules.7 Moreover, a number of nonjudicial bodies are developing guidelines and best practices standards that attempt to take these recent decisions into account and also anticipate issues that have yet to be resolved by the courts. For example, an ABA task force recently issued draft amendments to the ABA Civil Discovery standards and hopes to secure approval for a final version at the meeting of the ABA litigation section in May.
More recently, The Sedona Conference updated The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, which includes commentaries on the benefits of written document management policies and the consequences of good faith destruction of documents in compliance with such policies.8
Conclusion
Zubulake and its progeny suggest that to the extent reporters’ notes and related materials are routinely saved in electronic form, news organizations may have an obligation to retain them and/or back them up during a period before any lawsuit is filed when there is reasonable knowledge that the evidence may be relevant to anticipated litigation. However, given that threats of litigation are part of the background noise of the news business, with potential plaintiffs frequently engaging in proactive measures to head off or influence stories prior to publication, it could be argued that this broad but inchoate “threat or anticipation of litigation” standard imposes an undue--and perhaps unconstitutional--burden on the media’s newsgathering activities. As news organizations and their attorneys familiarize themselves with the new rules and standards governing electronic discovery and begin incorporating them into their document retention policies, they should also be monitoring their financial and other costs in order to be ready, if necessary, to challenge them.
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