By Matthew Richards
Your computer files can be a plaintiff attorney’s gold mine.
Litigation increasingly involves requests for the discovery of electronic documents, including e-mail. From a defense perspective, this raises significant liability concerns: The disarmingly informal nature of e-mail creates the single greatest source of “smoking guns.” The volume of e-mail and other e-documents is exponentially growing. Automated processes to destroy e-documents may proceed unawares, yet courts impose the same rules for discovery and the same duty to preserve evidence that apply to paper documents. Thus, the failure to preserve requested e-documents—even unintentionally—once litigation commences can result in stiff sanctions.
But the solution is not to save everything. The costs of retaining e-documents beyond their useful life can be astronomical. E-documents are easily stored everywhere from company servers, to hard drives, to handheld PDAs, cell phones, laptops, fax machines and employee home computers, and simply “deleting” an e-document may not purge it. Responding to discovery requests may require searching all these systems, restoring backups, and sifting the data to locate relevant information.
There are proven ways to avoid sanctions and minimize costs:
To discuss these issues with an expert, please contact Kirton & McConkie’s Matt Richards at mrichards@kmclaw.com. Mr. Richards has assisted clients both to develop comprehensive e-records management policies and to craft workable litigation response plans.