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In the case of Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) the court made an interesting statement in reference to how website content should be treated in litigation:
The only question is whether or not the website was under the control of Defendants. This Court sees no reason to treat websites differently than other electronic files. Where, as here, Defendants had control over the content posted on its website, then it follows a fortiori that it had the power to delete such content. Although Defendants do not so posit, it may be argued that the website was maintained by a third party, perhaps a web design company who posted content on behalf of Defendants. But this is irrelevant, just as it’d be irrelevant if the website was maintained on a third party server rather than Defendant’s own server (as is likely the case here). Despite the inevitable presence of an intermediary when posting content on the Web, the Court finds that Defendants still had the ultimate authority, and thus control, to add, delete, or modify the website’s content. There is no evidence to the contrary.
This poses an interesting question for organizations with a presence on the internet; do you have the ability to preserve parts of, or your entire website quickly if litigation arises and a litigation hold is required on website data? How would you do this?
I think the obvious solution is to backup the website servers and secure the backup in case it is needed in discovery. But this case brought up an interesting question that I am sure few organizations have thought of when it comes to litigation holds.
