VOICES FROM THE INDUSTRY: Electronic evidence a new reality in business litigation

D o u b l e – c l i c k , open, read and delete.

Does this sequence for reading e-mail look familiar?

Whether you work for a small- to medium-size business with few employees and a basic network of computers or part of a large corporation with its own technology department, if your company is
electronic forms of communications, so has electronic evidence become a regular part of most business litigation.

Not long ago, if your business was party to a lawsuit, you may have likely found the opposing party requesting you to produce relevant letters, memos, and correspondence. However, the days of simply having to review your business’s designated file folder for documents to produce on a particular subject matter have gone the way of typewriters and carbon paper.

Today, you will likely find your business also having to respond to requests to produce e-mails, instant messages, and server data, addressing issues over the production of metadata and perhaps requiring you to consult an information technology specialist in order to provide:

a detailed description of your computer systems

a detailed description of how your computers are networked

a detailed description of back-up processes and schedules

a detailed description of retention and destruction schedules while identifying your electronic retention policies.

Since your answers will likely be made “under oath” and since court rules generally require full and complete answers, your ability to answer the questions are important during litigation. Your answers will impact the determination of what sources of electronic evidence exist for production of evidence in the case.

named in a lawsuit-no matter the type of dispute-chances are that electronic evidence will be a part of the case.

Electronic evidence consists, most commonly, of communications that remain on a business’s computer network after the communications among individuals has ended, including e-mails, instant messages, “PDFs” and remote sessions.

Changing communications

Electronic evidence can exist in numerous locations throughout a business’s computer network and office, including servers, mainframes, work stations, notebook computers, employee home computers, cell phones, voice mail, and “PDAs”.

As the use of technology in the workplace has transformed our everyday communications away from letters, memos and written correspondence and more toward

If such questions seem unreasonable and burdensome, be aware that judges in courts around the country have quickly accepted and embraced the fact that electronic evidence is now a part of everyday business litigation. Thus, judges and courts are becoming less tolerant of delays in disclosing and producing electronic evidence, let alone the destruction of such evidence, even accidental.

New legal requirements

Starting Dec. 1, 2006, certain rules of procedure in federal courts were amended to specifically address the disclosure and production of electronic evidence.

For example, federal courts now require parties in early stages of the case, even without awaiting a request from the other party, to provide a copy of or description by category and location of, all electronically stored information that is in the possession, custody or control of the party which may be used to support its claims or defenses.

Additionally, federal courts now require parties to confer to discuss any issues relating to preserving discoverable electronic evidence and address any issues relating to disclosure or discovery of electronic evidence, including the form in which it should be produced.

Federal courts have also tried to strike a balance by limiting production of electronic evidence from sources that the party identifies as not reasonably accessible
because of undue burden or cost, but leaving open the possibility the court may compel production if good cause is shown by the opposing party.

Indeed, hefty fines and sanctions are being handed out by courts to businesses (in some cases exceeding $1 million) for failing to identify and produce relevant electronic evidence. If relevant electronic evidence is not properly identified and preserved in the early stages of a case, a business may find itself defending a claim for “spoliation” (destruction) of evidence.

If your business was sued today, would you be prepared to address the questions above? Would you be prepared to identify all sources of electronic evidence early on in the case? Would you be prepared to state unequivocally that your business has a retention and destruction policy in place, and that it is implemented and enforced on a routine basis? Or would you find yourself holding your breath and hoping that no employee with a “click” of a mouse, deleted or destroyed relevant evidence?

In many respects, the conveniences of technology have simplified our lives. However, in other respects it has made it more complicated. The disclosure and production of relevant electronic evidence and data can be complex and even devastating to a business during litigation.