What Every Business Owner Should Know About E-Discovery
February 22, 2012In today’s technology era, where computers, servers, email, smart phones, text messages, external storage devices and social media are operational mainstays, written and printed communications are going the way of the horse-drawn carriage. Add “green” initiatives and paper-reduction policies – sparked by operational efficiencies (cheaper, faster and better for the environment) – and it’s clear to see that electronic mediums are here to stay. For the business owner, it’s important to understand that, just like physical files and hard copies, if you find yourself involved in a lawsuit, electronic information (both saved and deleted) can be subject to discovery.
This new form of discovery is known as “E-Discovery” and encompasses much more than printing out emails, pdfs or Word documents. E-Discovery may also include forensic searches on servers, hard drives, smart phones, external storage devices and individual work-stations. Emails and other electronically stored information are generally subject to discovery. In fact, discoverable electronic information even includes documents that have been “deleted,” but still exist on storage devices in unallocated space.
Once a company has been notified that documents in its possession are relevant to pending litigation, destruction of documents must cease. Failing to prevent the destruction of documents could result in court imposed sanctions, even where the documents are destroyed according to a routine document retention policy. If a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure preservation of relevant documents – including electronic information.
Preserving, locating, searching and reviewing what could potentially be discoverable information can be a very expensive process. It is important for companies to have a good understanding of how and where electronic information is stored. When companies are faced with this situation counsel should be engaged on the front-end to work directly with the IT department to avoid potential pitfalls down the road.
Preserving, locating, searching and reviewing what could potentially be discoverable information can be a very expensive process. It is important for companies to have a good understanding of how and where electronic information is stored. When companies are faced with this situation counsel should be engaged on the front-end to work directly with the IT department to avoid potential pitfalls down the road.