Consider this: A longtime employee files an age discrimination suit against your company, and in the ensuing court case, the employee’s attorneys make a request to review internal e-mails and electronic documents considered relevant to the case. But it turns out many of those documents were deleted as a matter of course by key players in the case—the plaintiff’s co-workers—not long after the lawsuit was filed. And some information deemed crucial existed only on backup tape and was routinely recycled as a matter of policy. Standard procedure and nothing to be worried about, right? Not necessarily. In fact, these routine data dumps could result in big legal troubles for your company.
Welcome to the new world of electronic discovery, where e-mail, word processing files, and even instant messages are now often required as evidence in litigation. The proliferation of electronic information, much of it created informally, has complicated the laws related to legal discovery. Companies that assume deleted data is irrelevant—or irretrievable—may be surprised by the new legal landscape. Organizations now must have a protocol for quickly identifying and preserving relevant electronic files should they be named in a lawsuit.
A New Road Map
The release in December 2006 of amendments to the Federal Rules of Civil Procedure governing discovery of electronically stored information created a new playing field for companies facing impending or current litigation. The amendments, which have been largely adopted by Minnesota courts, lay out procedures for dealing with the discovery of electronically stored information in court cases. The amendments are designed in part to help streamline the often onerous production and review of electronic evidence during litigation.
There is an expectation that organizations make “reasonable efforts” to preserve electronic evidence that could be relevant to a lawsuit, with that duty beginning upon “reasonable notice” that litigation is imminent, says Wayne Moskowitz, a partner in commercial litigation with the law firm Maslon Edelman Borman and Brand in Minneapolis. Notice is usually a letter from an attorney accusing a company of a particular infraction such as securities fraud or sexual harassment. It doesn’t mean, however, that companies have to immediately begin preserving every computer file or e-mail message created or received. “What the courts really care about is that you preserve evidence that may be helpful to the other side,” Moskowitz says. “If you destroy or cover up electronic documents that may have been useful to plaintiffs, and they then sue your company, that is where you get into trouble.”
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