By Ronald S. Nixon
As business professionals, we’re inundated each day with
e-mails, voice mails, text messages, faxes and more. To complicate matters, you should also keep track of the information you’re sending and receiving or it could come back to haunt you in court. The federal courts recently amended their rules to clarify that all this “electronically stored information” or “ESI” can be used in litigation.
With all the information flying at us today, how do you protect yourself without loading up your in-box? Creating a plan or policy now will allow you to determine what ESI to keep and what to discard, without that decision being made by the requirements of litigation.
What is Electronically Stored Information?
ESI is every conceivable kind of stored electronic data: computer files, e-mails, word processing documents, embedded data (such as tracked changes to a document), as well as voice mail and text messages sent through a cell phone. The term ESI is broad enough to include forms of electronic data that have not yet been conceived.
The myriad forms of ESI and the devices used to store it (computers, digital cameras, cell phones, PDAs, etc.) existing in business today make finding and producing ESI complex when litigation begins. Some company information may even be stored in employees’ homes or in cyberspace using web-based services.
When should I save electronic information?
The duty to preserve information relevant to a claim usually arises when the threat of litigation is reasonably anticipated, and in some cases that standard may be met before a company’s law department is even aware of a possible lawsuit. Because of this gray area, most experts recommend that companies implement a strategy to deal with potential issues when litigation is NOT an issue. The stress and accelerated timetable of litigation is not the best time to first consider how to preserve and retrieve important information. Destruction of evidence relevant to a potential claim can result in serious sanctions.
How do I plan for the future?
One strategy is to take stock of your ESI: identifying such things as what kinds of ESI the company possesses, where it is located, who controls it, and who uses it. This can potentially reduce litigation costs, alleviate the risk of sanctions, and become a useful tool to control your company’s storage and use of information.
Another recommended strategy is to develop and routinely follow a document retention policy. A sound policy will allow a company to identify and destroy documents and data that have no value and are not legally required to be kept. In implementing such a policy, a company must carefully assess its legal requirements for keeping documents. The policy should also be flexible enough to stop the destruction of relevant documents in the event a duty to preserve arises.
For further information regarding these matters, please contact Mr. Nixon at 248.619.2585 or
click here to send an email.
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