Preserving Evidence for a New Jersey Business Lawsuit
What to do with emails, texts, and business records when a dispute becomes serious
By Peter J. Lamont, Esq.
A customer threatens a lawsuit just as your company is replacing employee phones. The messages about the disputed project are on one of those devices. Nobody is trying to destroy evidence, but the scheduled trade-in could erase information that later becomes difficult to recover. Similar problems arise when email accounts are closed or ordinary retention settings remove old files.
Preserving evidence for a business lawsuit requires attention to where the relevant information lives and how it might disappear. When a concrete dispute makes litigation a realistic concern, contact counsel before allowing potentially important records to be deleted or altered. The right preservation steps depend on the matter. Waiting for someone to serve a document request can leave avoidable gaps.
Start with the people who handled the transaction
Ask who negotiated the agreement, performed the work, and discussed the problem with the other side. The company owner may not hold the most important records. A salesperson’s text messages or a project manager’s shared folder may explain the disputed change better than the final invoice. Identify the people and systems involved before deciding what needs to be preserved.
Include former employees and outside service providers in the factual review. Tell counsel whether a relevant account has already been closed or a device replaced. There may be backups or other sources, but do not assume that recovery is possible. The earlier the issue is identified, the more useful the preservation discussion can be.
Create a simple inventory for counsel. Note the person, the system, and the type of information likely to be there. For example, the warehouse supervisor may have delivery photographs on a company phone while the accounting system holds the payment history. The inventory helps focus preservation without asking every employee to make unguided copies of everything.
Review automatic deletion before it does its ordinary work
Businesses often have routine settings that delete messages after a period of time. Other losses occur when storage fills, software changes, or an account is reassigned. Ask the person responsible for those systems how the relevant information is retained. A policy in a handbook may differ from the settings actually applied to an employee’s account.
New Jersey Court Rule 4:23-6 addresses electronically stored information lost through the routine, good-faith operation of an electronic information system. Absent exceptional circumstances, it limits sanctions under the rules for that category of loss. The good-faith requirement matters. The rule should not be treated as permission to let relevant evidence disappear once a dispute has raised a preservation concern.
Counsel and the appropriate technology personnel can determine whether particular deletion processes should be suspended and how relevant information should be retained. Keep a record of the steps taken and who performed them. A verbal instruction to save the important emails may be too vague for an employee who does not know which project details will matter.
Keep originals and preserve context
A screenshot can help identify a message, but it may omit the surrounding conversation, attachments, or information associated with the original file. Preserve the source where possible and ask counsel about an appropriate collection method. The goal is to retain usable evidence without changing it in the process of trying to save it.
Keep the full conversation, including messages that appear unfavorable. An isolated sentence can be misleading when the earlier discussion explains what the parties meant. Deleting an embarrassing response can create a more serious problem than the response itself. Your attorney needs the complete record to evaluate the dispute and prepare an accurate account.
Do not edit a business record to make it clearer for litigation. If you need to explain an abbreviation or an error, identify the issue separately for counsel. Preserve the original entry. A later explanation and an altered original are very different things when another party begins examining the history of the record.
Altered records can change the litigation
In Rosenblit v. Zimmerman, 166 N.J. 391 (2001), the New Jersey Supreme Court considered a medical malpractice case involving alteration of records. The original records had been recovered before trial. The Court addressed several possible consequences of evidence concealment or destruction and explained the requirements of a fraudulent concealment claim.
The Court reversed the fraudulent concealment judgment because the circumstances did not establish the required harm from the missing evidence in the underlying case. It also ordered a new malpractice trial and addressed the admissibility of the alteration evidence. The decision demonstrates why a record problem cannot be evaluated solely by asking whether the original eventually turned up.
It does not establish that every missing document automatically produces a separate damages award or an adverse inference. The applicable requirements and the facts matter. For a business, the practical lesson is to preserve records faithfully and obtain advice promptly if something has been lost, changed, or withheld. Attempting to repair the appearance of the file can make the situation harder to explain.
Preservation does not mean sending everything to the other side
Saving information and producing it in litigation are separate steps. A preserved file may contain unrelated personal information, confidential business material, or communications that require legal review. Keep the material secure and let counsel evaluate what must be provided and how. Do not respond to an opponent’s broad request by forwarding an entire mailbox without advice.
Limit access to people who need it for the preservation work. If a technology vendor is involved, explain the scope through the appropriate process and confirm how the information will be protected. Keep track of the source and any copies made. A collection effort should not create unnecessary circulation of customer or employee information.
The same caution applies to shared online folders. A link that can be edited by anyone may not be an adequate way to preserve the original material. Ask about a method appropriate to the system and the dispute. Avoid experimenting on the only available device when a professional collection may be needed.
Plan for staff departures and changing systems
If an employee connected to the dispute is leaving, tell counsel and the person handling the departure before the account is closed. Identify relevant company devices and business information held in permitted messaging applications. The preservation plan should account for the actual workflow, including remote work and systems managed by outside providers.
Revisit the plan as the dispute develops. A new allegation may identify a different project period or another person with relevant records. Conversely, a focused scope can help avoid unnecessary collection. Counsel should guide those decisions against the issues in the matter, rather than leave employees to decide privately what seems useful.
If information is already missing, document what is known without guessing. Record the system involved, the approximate timing, and any recovery steps already attempted. Prompt disclosure to your own attorney permits an informed assessment. Quietly recreating a document and presenting it as the original is not a reliable solution.
Make preservation part of the first legal conversation
Our New Jersey litigation practice can evaluate the records needed for a developing dispute. Our business practice can help identify the agreements and operational issues behind the claim. If your company faces a serious dispute while records are being deleted, accounts closed, or devices replaced, contact the Law Offices of Peter J. Lamont so the preservation questions can be addressed promptly.
Contact us today to discuss your business or legal matter. Put our 20+ years of legal experience to work for you.
For detailed insights and legal assistance on topics discussed in this post, including litigation, contact the Law Offices of Peter J. Lamont at our Bergen County Office. We're here to answer your questions and provide legal advice. Contact us at (201) 904-2211 or email us at info@pjlesq.com.
Interested in More Legal Insights?
Explore our range of resources on business and legal matters. Subscribe to our podcast and YouTube channel for a wealth of information covering various business and legal topics. For specific inquiries or to discuss your legal matter with an attorney from our team, please email me directly at pl@pjlesq.com or call at (201) 904-2211. Your questions are important to us, and we look forward to providing the answers you need.
About Peter J. Lamont, Esq.
Peter J. Lamont is a nationally recognized attorney with significant experience in business, contract, litigation, and real estate law. With over two decades of legal practice, he has represented a wide array of businesses, including large international corporations. Peter is known for his practical legal and business advice, prioritizing efficient and cost-effective solutions for his clients.
Peter has an Avvo 10.0 Rating and has been acknowledged as one of America's Most Honored Lawyers since 2011. 201 Magazine and Lawyers of Distinction have also recognized him for being one of the top business and litigation attorneys in New Jersey. His commitment to his clients and the legal community is further evidenced by his active role as a speaker, lecturer, and published author in various legal and business publications.
As the founder of the Law Offices of Peter J. Lamont, Peter brings his Wall Street experience and client-focused approach to New Jersey, offering personalized legal services that align with each client's unique needs and goals.
DISCLAIMERS: The contents of this website and post are intended to convey general information only and not to provide legal advice or opinions. The contents of this website and the posting and viewing of the information on this website should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. Nothing on this website is an offer to represent you, and nothing on this website is intended to create an attorney‑client relationship. An attorney-client relationship may only be established through direct attorney‑to‑client communication that is confirmed by the execution of an engagement agreement. This post discusses general principles of New Jersey law. Each legal matter depends on its particular facts, documents, and applicable deadlines. Obtain advice from an attorney before acting or deciding not to act based on this information. If your matter arises outside New Jersey, consult an attorney licensed in the relevant jurisdiction.
Disclaimer: Recognition by Legal Awards
The legal awards and recognitions mentioned above do not constitute an endorsement or guarantee of future performance. These honors reflect an attorney's past achievements and should not be considered as predictors of future results. They are not intended to compare one lawyer's services with those of other lawyers. The process for selecting an attorney for these awards can vary and may not include a review of the lawyer's competence in specific areas of practice. Potential clients should perform their own evaluation when seeking legal representation. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
Comments