Peacock Tales • Spring 2011

Hang on to your Electronic Files

Whether you have filed a lawsuit or are defending one, discovery must be taken. Usually, that entails deposing important witnesses and turning over potentially relevant documents to any other parties involved. What you may not have considered is that "documents" may include any electronically stored information you have possession or control over.

Electronic information and data is created and stored in a variety of places, including employee e-mail accounts, desktops, laptops, hard drives, servers, back-up tapes, social media (e.g., Twitter, Facebook, etc.), and smart phones. As the growth of this information continues to outpace traditional formats such as paper, litigants, particularly businesses, will be increasingly exposed to electronic discovery issues in lawsuits.

Sometimes, disputes over electronic discovery have overshadowed the original cause of action and lead to the imposition of sanctions. Accordingly, both clients and their counsel must be aware of electronic discovery pitfalls and how to utilize electronic discovery to their client's benefit.

The treatment of electronic discovery issues varies among jurisdictions; however, despite these divergent views, several general principles have become clear. The first of which is that a business must establish and follow a reasonable retention policy for electronically stored information (and hard copy for that matter). We tell our clients that several reasons exist for establishing a record retention policy, including

  • The maintenance of documents for ongoing business concerns.
  • Preservation of critical records, as well as those of historical significance.
  • Protection of records essential for disaster recovery.
  • Compliance with applicable laws and regulations.
  • Minimize exposure to spoilation claims in litigation.
  • Management of costs related to storage and destruction of records.

Policies of wholesale document destruction are clearly inappropriate and likely indefensible. Likewise, the absence of a policy will be considered in determining sanctions. Most importantly, an entity needs to be mindful of when potential litigation may arise, and to preserve electronically stored information that may be relevant to future litigation. Just because it is difficult or expensive to find a record does not necessarily mean that a court will not order you to produce it. Thus, establishing and following a reasonable retention policy for electronically stored information is essential to protecting yourself, or your business, from spending more time and capital if litigation becomes a reality.

Whether you need a plan for retaining electronically stored information or have one that should be updated, the lawyers at Peacock Keller will work with you to craft the right policy and to help you understand the growing significance of this issue.


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Peacock Keller, LLP • 70 East Beau Street • Washington PA 15301 • 724-222-4520