09 Dec A Primer on Electronic or “E” Discovery
In the next series of blogs and podcasts we will be diving into electronic discovery or E-discovery, which for many clients is uncharted territory and thus a stressful part of the litigation process. It is critical that you and your attorney understand the ins and outs of electronically-stored information and the discovery of this information to ensure legal compliance with e-discovery obligations.
Now-a-days most if not all companies are digital—meaning, most companies maintain company documents and data electronically on the Cloud, Dropbox or other remote server, or on computers, mobile devices, and offsite backup storage facilities. Moreover many companies utilize the e-mail, voicemail and texting capabilities of mobile devices during business travel. If your company is sued or is otherwise engaged in litigation, the law requires you and your company to efficiently manage your company’s electronic information so that it can be made available for production during the discovery process in litigation.
What is Electronically-Stored Information?
Electronically-stored information or “ESI” is any information that is stored in an electronic medium and is retrievable in a perceivable form. The Rules of Civil Procedure also broadly define ESI to include writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations. Some obvious forms of ESI are e-mails, e-mail attachments, Excel spreadsheets, Word documents. Also included in the ESI category are voicemails, text messages, internet history logs, social media sites and profiles, and computer or smart device videos. And less obvious ESI includes items such as metadata—information about a particular piece of ESI, including the e-document’s length, author, and creation date.
Similarly electronic information can be stored in a number of ways and formats. If a computerized device or service has a memory capacity, that device or service is a repository for ESI and thus must be properly maintained in the event it needs to be culled and produced in a lawsuit. ESI can exist on:
- Computer hard drives
- Phones/Blackberries
- Voicemail systems
- Tablets
- Compact discs
- Floppy disks
- Thumb drives
- Corporate e-mail accounts
- Internet-based e-mail
- Memory chips on digital copiers
- Onsite or offsite network backup tapes
Company data that is housed in any of these mediums could be subject to production in a litigation or government investigation.
Unique Issues with Electronic Discovery
Electronic discovery is the disclosure of electronically-stored information as part of the discovery process in litigation. The legal framework governing the disclosure of electronic discovery is not much different than the rules governing production of paper discovery.
However there are issues with electronic discovery that make it more difficult to deal with than paper discovery:
- The volume of electronic discovery can be overwhelming and typically dwarfs the amount of paper discovery in an average business litigation;
- Locating where all relevant electronic discovery is stored and figuring out how to efficiently identify and produce relevant data can be a daunting task, particularly if neither you nor your attorney are tech-savvy. The use of an expert is usually required in these cases;
- Turning a computer on and off or accessing a particular file can alter or destroy ESI;
- Computer systems may automatically discard or overwrite ESI as part of their routine operations;
- Computers can create ESI without the operator’s direction or even awareness;
- ESI continues to exist even after you deleted it, in forms that are difficult to locate, retrieve or search, and may require the retention of a computer forensics expert;
- Some ESI may not be cognizable when separated from its source.
Due to these number of concerns, you and your attorney should take great care in maintaining electronic information in the event you need to produce it in future litigation.
The Importance of Having a Records Management Program in Place
As a business owner, you and your company employees probably routinely organize and discard of electronically stored information in the ordinary course of business. There is generally nothing wrong with this process, so long as you can prove to the court that it is done as part of your company’s “records management program.” To this end you must work with your CIO and your attorney to implement a proper records management program that addresses the policies and procedures for how your company expects employees to handle company information. The program should also provide a systematic approach for the preservation and deletion of company records.
An effective records management program will help you and your business ensure that your company preserves those records it is legally-required to retain (or should retain for a business reason) and discards of those records that are no longer useful or legally required to be kept.
In order to effectively implement a records management system, your company and your attorney must be familiar with the various laws and regulations governing records retention and ensure records retention practices conform to these legal requirements. Your company has a legal duty to preserve all relevant information (both electronic and hard copy data) as soon as it reasonably anticipates it will become involved in litigation or a government investigation. For example, if you and your company are suing someone, your duty to preserve information is triggered. Also, if you and your company have received a cease and desist letter, or have been served with a complaint, your obligation to preserve data is triggered. Even as a non-party to litigation, if you or your company receive a subpoena, you are obligated to preserve data.
Once the duty is triggered, you and your attorney are expected to make a “good faith effort” to uncover company data that is relevant to the underling facts in the investigation or litigation. This does not mean you need to produce and make available every single piece of electronic data or hard copy data for that matter. What it does mean however is that you must be able to justify why your efforts were reasonable and comprehensive given the circumstances and the facts of the case and specifically, why it would be unduly burdensome to require your company to produce anything else. Whether or not a court or a government agency finds your efforts sufficient will depend almost entirely on whether you and your company took a proactive and proper approach to managing and ultimately collecting and producing electronic data.
If you and your company anticipate being involved in a future litigation or government investigation, call Edwards Law today to discuss what steps your company should start taking to ensure e-discovery compliance.
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