If you rely on computers to manage your business, you and your employees are becoming increasingly dependent upon electronic communication and other forms of electronic record keeping.
“Electronic data can be ‘deleted’ but never truly disposed of and may be easily recovered,” says Jeff Berman, Esq., an attorney with Katz Barron Squitero Faust.
As businesses depend more on computers for communication and record keeping, electronic records are more frequently becoming an issue in lawsuits. If your business gets involved in litigation, your company’s electronic records could be subject to disclosure through electronic discovery.
Even if you are not directly involved in litigation, your business may be required to produce its electronic records in response to a subpoena. Your electronic records should be managed to ensure not only effective use in lawsuits, but also full protection of your proprietary documents and communications.
Smart Business spoke with Berman about electronic discovery and managing electronic business records.
What is electronic discovery?
Electronic discovery is the requesting and production of electronic records in litigation. Traditionally, discovery involved the production of physical documents — written records that were simply pulled from a filing cabinet or storage and produced by duplicating them. Electronic discovery, in contrast, is often more complicated because it requires the diligent protection of proprietary information and can be more onerous than physical document production.
Unlike the production of physical records, which a business can easily screen to avoid the production of proprietary information, the production of electronic business records is fraught with concerns over the disclosure of confidential information. Many types of electronic files include metadata, the hidden data attached to files that may contain information you do not want produced. For example, e-mail metadata may include various different versions of an e-mail, including drafts of the e-mail before it was sent. Business e-mails are often revised to exclude information the business would otherwise not want disclosed. Given the complexity of electronic records, a business producing its computerized records may inadvertently disclose proprietary information or other information that was not sought, cannot be required or which the business would not have wanted to willingly produce.
Beyond confidentiality, business owners and managers should be concerned with the potential difficulties involved in responding to electronic discovery requests. The ease or difficulty of producing electronic records depends on how a business’s electronic records are organized, stored and maintained. Electronic discovery can involve a number of electronic devices and may include e-mails, text messages, digital pictures, electronically generated or stored documents, electronic calendar entries, and electronic financial and accounting records, among others. How the data generated by these devices is stored will impact the manner in and ease with which electronic business records can be produced.
Electronic discovery also presents opportunities to further business objectives. It can help businesses involved in litigation bolster their claims or shore up their defenses. Through electronic media, businesses can document their ongoing work before disputes arise. Electronic records can often strengthen a litigation position, resulting in more cost-effective dispute resolution.
