by Eric J. Miersma
Electronic discovery is a popular topic today in legal publications. If you own or manage a business, large or small, you should understand why so many lawyers are talking about “e-discovery.”
First, let me explain the term discovery for those of you fortunate enough not to know. Discovery describes the legal procedure which allows one side to get information from the other side in an orderly fashion during the course of a lawsuit. Discovery takes many forms. Among the more popular means are special interrogatories, requests for production of documents, and depositions. Interrogatories and document requests are simply written questions that must be responded to in writing and under oath. A deposition is a face-to-face question and answer session conducted under oath over one or more days.
These basic procedures have changed very little over hundreds of years. However, the way we do business and keep records has changed remarkably in only the last decade. Specifically, the proliferation of email and electronically stored information (“ESI”). As electronic means of recording and storing information become the norm, people have discovered the abundance of information retained and begun actively pursuing it.
Second, electronic discovery simply means using existing discovery methods to gain access to things like corporate email and data archives. To illustrate, imagine being advised by your attorney that you have been served with a request for production of documents asking for all correspondence you generated over the past year. The traditional way to respond is to go to the file cabinet, pull the relevant file, and copy the appropriate paper correspondence. Although the scale and expense of providing the correspondence is much different depending on whether you are a multinational conglomerate or a mom-and-pop shop, you can usually determine whether you have produced all the relevant documents and can easily look at them to see what they say. Believe it or not, many lawyers and their clients were satisfied with this procedure, even as email became the predominate form of business communication. Email and ESI were not typically asked for or produced, unless they happened to exist as a hard copy in a file.
Now imagine the same scenario, but with an opposing side who understands that your email, particularly those one or two line internal emails that fly back and forth between co-workers, can contain the proverbial “smoking gun.” Do you know your company’s data retention policy? Do you know whether your emails still exist on a company server or at some other location? Do you know how to access and review them if do exist? If not, you should. You do not want to be asking these questions after you become involved in litigation.
Finally, it is important to understand that the basic rules of discovery have not changed. What has changed is the availability, or scope, of things to discover. Putting something in writing used to take significantly more time and effort. Now it only takes a few seconds to shoot a quick email to a colleague or business partner. We used to be confident that a particular document had been destroyed when it was thrown away or shredded. Now a single email can exist indefinitely on your laptop, desk computer, office server, and recipient’s computer, even after you press the delete key. Exotic terms like “metadata” are used to describe, for example, the wealth of information stored in a word processing document that is not visible in a printed hard copy, but in an electronic format reveals things such as revisions, how many times a document was accessed and by whom, whether it was emailed, and to whom and when. All this information is potentially discoverable. This is why lawyers are writing about e-discovery. This is why you should understand it before you are sued and someone is asking you for it.
Despite the sometimes overwhelming prospect of protecting your company’s data in the electronic age, there are a few simple things to consider. Teach your employees that correspondence is correspondence, no matter how small. Treat every email as if it were written in long-hand and you expected to see it as an enlarged exhibit at trial. Think before you hit the send button. Understand your company’s data retention policies, or implement them if they do not exist. Understand that you can be given a document preservation demand at the outset of litigation which obligates you to prevent the spoliation of evidence. This means you must have a way to prevent your computer systems and employees from systematically, and innocently, deleting files when they should be preserved for litigation purposes and discovery responses.
I hope that this provides you with an incentive to think about your email habits and company policies. Thinking about electronic discovery now, rather than after you are involved in litigation, can save much time and expense. As always, please feel free to contact me at .(JavaScript must be enabled to view this email address) with any feedback. I also welcome any suggestions for future article topics.
