Philadelphia — April 17
Amendments to the rules governing federal court litigation that went into effect late last year strengthened the need for businesses to store and preserve their electronic documents, as well as educate their employees about their electronic document policies, according to Pepper Hamilton, a multipractice law firm with 450 attorneys in Pennsylvania, New Jersey, Delaware, New York, Michigan, California, Massachusetts and Washington, D.C.
“The federal rules amendments recognize the reality that almost all lawsuits today involve documents and information stored in electronic format,” said Steve Harvey, Pepper Hamilton LLP partner.
E-discovery — or the retrieval, review and production of electronic documents during the discovery phase of litigation — is a burgeoning area that can have a significant impact on the outcome of a case.
“Electronic discovery can no longer be one of the last things companies involved in litigation think about,” Harvey said. “Instead, it now must be made a high priority for most cases. Businesses have lost cases and millions of dollars by neglecting to preserve information relating to a lawsuit.”
Affected by the increased importance of e-discovery are:
- Candid and off-handed comments employees make in e-mails and in instant messages. “These casual conversations can prove to be detrimental in litigation,” Harvey said. “When employees talk via instant messages, they are creating records and documents that the company is not aware of. A plaintiff’s lawyer, searching for the ‘smoking gun’ document that may win a case, will often look into instant messenger conversations first.”
- Adequate storage and preservation of electronic documents. “The new rules are designed to establish guidelines to ensure both parties are storing documents that can be used to support their claims or defenses,” Harvey said. “Companies should have a database of relevant documents that can be used by both sides during the trial, as well as a cost-effective strategy for reviewing and managing them.”
- The need to develop a comprehensive information management plan and communicate it to all employees. “Although it is customary to delete unneeded files, companies need to be careful not to inadvertently erase documents,” Harvey said. “Once litigation is reasonably anticipated, all parties are obligated to preserve relevant documents. Companies need to develop a policy that clearly defines how they will retain old documents, where those documents will be stored and how long they will be maintained. The plan should then be communicated to all employees.”