What Your Organization Needs to Know About New Electronic Discovery Rules
Whether your organization is taking advantage of the latest electronic communication devices or is merely using e-mail as an inexpensive form of communication, electronically stored information can become a minefield of problems if your organization ever finds itself in litigation.
Companies are obligated to prevent the destruction of relevant evidence to a law suit. However, now with electronic information, that task has become more difficult. At a minimum, all organizations should have a formal written process for implementing a “hold” on destruction of data when a lawsuit is reasonably likely.
Next, all companies should have a detailed written inventory of the kinds of electronically stored information the organization produces, its format, and the system or software used for its creation. Often the most troublesome area for many organizations is determining what information exists on off-premise, personal electronic devices, such as personal laptops, or PDAs, yet data from these sources can also be subject to discovery.
On the other hand, there is a proper method to the deletion of electronically stored information if it is destroyed as part of a routine operation done in good faith. In order to qualify for the safe harbor, your organization must have already implemented a data retention policy before litigation and must consistently adhere to it.
Finally, parties may not be required to provide certain information if it can be shown that it is not reasonably accessible. Companies should prepare in advance to provide proof of the costs of accessing and recovering electronic information that it would seek to prove is not “reasonably accessible”. Through proper planning and implementation of these policies, your organization can be well-prepared to meet the challenges of litigation in this information age.
