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Preserving Webpages in the Digital Age

Technological advances have allowed companies to keep and store information on electronic platforms.  Websites, e-mail, and the cloud are all ways by which companies collect and store company data.  As a result, companies in the last few decades have drastically changed the way they preserve electronic information, and produce that information for discovery during litigation proceedings.  This can create confusion as to what electronic information needs to be stored, and for how long outdated versions of electronic platforms—such as webpages—must be stored in order to comply with future discovery requests during litigation.

In Masterson v. Xerox Corp., 2016 BL 299451 (W.D. Ky. Sept. 13, 2016), plaintiff sued his employer, Gannett Co., for its failure to deliver on an insurance policy to which plaintiff had subscribed in 2011.  During discovery, the magistrate judge ordered Gannett to produce any documents that constituted all or part of the insurance agreement with plaintiff.  Gannet Co. then supplied screenshots of the insurance enrollment website as it was in 2015, rather than the website as it appeared when plaintiff subscribed to the policy in 2011.  Gannett alleged that they produced the 2015 screenshots because screenshots from 2011 were no longer available.  The court nonetheless found that the Gannett Co.’s production did not suffice, and ruled that the company must produce the website as it appeared in 2011.

This case raises a larger issue as to what duty, if any, a company has to store old versions of webpages for purposes of future litigation.

The Federal Rules of Civil Procedure lays out a duty to preserve evidence—including electronically stored information.   This rule requires a party to take reasonable and good faith actions to identify, locate, and maintain information that is likely to be relevant in reasonably anticipated, threatened, or pending litigation.  See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003).  In some cases, a party will be certain that particular information will be needed in future litigation, and hence it will be preserved.  But in other cases, particularly for large corporations and companies whose primary venue for business is a webpage, it becomes difficult to predict what will be relevant in an anticipated litigation.  Webpages and other electronic platforms especially raise preservation questions because of the frequency at which these platforms are edited and altered.  Must a corporation save each and every version of their webpage? If so, for how long must a corporation store this data?

While there is no Model Rule or statute which specifically speaks to the preservation of webpages, companies should err on the side of caution when preserving electronically stored information.  It would serve all parties best in future litigation if a company preserved each version of a webpage, in the even it becomes relevant in future litigation.  This will avoid discovery disputes that deal with electronic platforms, such as websites.   Furthermore, a party can be sanctioned by a court for not preserving electronic data.  See e.g. Zubulake, 220 F.R.D. 212.  With this in mind, it is imperative for a company to take steps to protect and preserve all electronic evidence, even if that means screenshotting each version of a webpage.

-Catherine Carney