Don't Forget the Website!

A corporation's website is often one of a corporation's most visible assets and as a result, websites are often given high priority by corporate marketing and public relations departments.  Websites should be paid the same attention when a corporation institutes a litigation hold.  Unfortunately, when a litigation hold has been instituted, forgetting about your website can be a dangerous oversight. 

In the recent case, Arteria Property Pty Ltd. v. Universal Funding V.T.O., Inc., (2008 WL 4513696, October 1, 2008), the District Court for the District of New Jersey held that websites should be treated the same as other electronic files and sanctioned the defendant corporation for failing to maintain the content on its website once litigation was reasonably anticipated. In Arteria, the plaintiff requested in discovery electronic snapshots or paper copies of the defendant corporation’s website. The defendant corporation failed to produce this information.  There was no dispute that the website was in existence at a time when it was at least reasonable that the corporation would be sued. As a result, the court found that the failure to produce the website constituted spoliation of evidence and imposed sanctions on the defendant corporation. 

The moral of this story?  Your litigation hold policy should have a mechanism in place to insure that your corporation's website, as an electronic document, is preserved in the same manner as other electronic data subject to a litigation hold.  

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Roger S. - December 15, 2008 10:06 AM

Having a policy to preserve websites sounds great, both for e-discovery and long-term access to online information, which is the only place much information is stored and accessed.

One practical question is then: What tools work well to preserve sites? To truly make items useful (and authentic), a backup should preserve the format of the information as rendered, not merely some version of the files. Just like retained email should maintain attachments and message threads, website preservation should likewise allow people to view information as it appeared, even if server technologies (e.g. PHP computer code) are required to display headers, footers and other context.

What tools are people using to maintain website backups?

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