e-Discovery
Information about electronic discovery and records retention
E-discovery evidence can win or lose a case
Sep 14th
The Los Angeles Business Journal recently posted an interesting article about how today’s lawyers not only need to be experts in their field of law, but increasingly also need to be eDiscovery experts. More and more e-mails, instant messages and other electronically stored documents are being used as evidence in disputes ranging from corporate law to divorce procedures. This has resulted in the emergence of more lawyers and legal assistants specializing in the sifting through and extraction of electronic documents as legal evidence.
Today, e-discovery is a lot more complicated and critical to litigation. The 2006 Federal eDiscovery rules mandate that attorneys start an electronic discovery process early in litigation. They also need to share the retrieval of these documents with opposing counsel.
Litigators have seen a definite transformation in the way cases are tried. Where in the past, case evidence was limited to a contract, pieces of correspondence and possibly a few handwritten notes, today’s cases require advanced key word and phrase searching in order to uncover the critical evidence for a case. The eDiscovery process has become so crucial that many litigators go as far as hiring specialized e-discovery professionals to retrieve the required information.
According to Michael Zweiback, a litigator in the Los Angeles office of Alston & Bird LLP, just hiring experts is not enough: “You can hire experts, but sometimes experts are only as good as the questions that are asked,” Zweiback said. “And if you don’t know the right questions to ask, you are at a disadvantage”.
Since evidence is crucial to any case, it makes sense that the actual discovery of evidence is an extremely important factor in the outcome of a case, especially if that information is not readily available. Lawyers who are knowledgeable about e-discovery capabilities and can retrieve crucial electronic records as evidence are likely to have an edge in today’s litigation. Just keep that in mind the next time you hire a lawyer..
5 tips to comply with new ediscovery rules
Dec 11th
The new electronic discovery rules are good news for prepared companies. If your company can demonstrate that you have taken reasonable care in creating guidelines as to what information needs to be retained and what should be purged, this will help in a court order since you can prove that your organization has taken electronic record retention seriously and that there are no ‘irregular’ deletions of specific documents or emails.
Follow these 5 tips to show that your organization has taken reasonable care:
1. Develop a records retention policy. Much like an email policy, company management will need to get involved in deciding about which documents need to be retained and when they should be purged.
2. Provide staff training to explain to users why the retention policy is needed and how it should be put into practice. Include retention policy guidelines in your employment handbook.
3. Identify and classify the electronic records that you currently have on your systems. Determine whether these are accessible or inaccessible, and whether some of these records should be deleted. Keep this database up to date.
4. Create an action plan that will be followed if your company faces a court order, in order to immediately inform your employees not to delete certain documents.
5. Keep evidence of the above activities so that you can demonstrate to the court that you showed good faith.
The new e-discovery rules – what they mean for your company
Nov 30th
On December 1 the new electronic discovery rules take effect in Federal court. The new rules now obligate companies to address e-discovery issues within 30 days after a lawsuit is filed. Under the old rules, companies could just wait for a discovery request, which could take up to a year after the initial filing of the lawsuit. The new rules mean that all companies, large and small, must pull their socks up and get serious about managing their electronic records.
The good news is that under the new rules, the court must now recognize that a company is not able to retain all records and will not be sanctioned if a document is deleted in good faith: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” This means that if you are not able to produce a particular document but can prove that you have implemented a retention system and that this document was deleted in good faith, you will probably not be sanctioned for this.
Further good news is that if a company can prove that producing certain electronic records would cause undue burden and costs, the court may decide that the documents will not need to be submitted: ‘A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden and cost’. Beware though, that the court may still decide that the documents must be produced if the requesting party shows good cause.
All in all, the changes are an incentive for companies to think about how they manage their electronic records and to put a formal retention program in place. Check back in a few days for several tips on how your company can show good faith to a federal court.