All these forms of computer-generated data are subject to discovery rules in a litigation proceeding; electronic data is also considered evidence and can be used in the courtroom. Thus, failure to properly manage the storage and retention of electronic data can be costly.
Potential discoverability of electronic evidence creates serious new risks for corporations. Trends indicate that there is an increase in use of discovery to obtain electronic information, but even more troubling is the increased use of discovery to obtain litigation-support database information. That information, once considered privileged or work product, may no longer be protected. Thus, corporations and the law firms that represent them must begin focusing on how to limit the risks.
Litigators are becoming more aggressive in their efforts to obtain electronic information in discovery. They are beginning to recognize that people will transmit messages by e-mail they would never put in a formal, written memorandum.
For some reason, many people have a false sense that their e-mail communications are secret or private (and thus delete really means delete) when, in fact, it must be produced in response to properly framed discovery requests and could end up before a judge or jury.
Litigators have learned that the internal e-mail’s of their adversaries can provide a treasure trove of damaging information and admissions. Litigation systems and databases have been a fertile avenue for electronic discovery.
There are a number of steps that corporations can take in order to improve the management of its electronic information.
Be sure to create an infrastructure to support your electronic data risk-management policy. That means identifying adequate resources to manage the program, setting up monitoring procedures, performing and documenting the monitoring, and evaluating trends, your company’s use of electronic data, as well as the business and legal climate. It is important to modify the policy in response to changing legal and business environments, in order to limit the risk while providing access to the data.
Being highly selective in determining what information to include in a database is another avenue to protect against disclosure. This selection process should be conducted by an attorney or under an attorney’s specific direction. Furthermore, any summaries or abstracts included in the database should be written by an attorney or someone under the attorney’s direct supervision.
Following these guidelines can dramatically improve a company’s management of its electronic data. Moreover, the implementation of an electronic data policy, and a careful approach to creating litigation databases and systems can save a company from potentially costly disclosures of sensitive information and work product.
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