Employees may want to be more careful when logging on to their computers to work from home. Changes in a federal law that took effect December 1, 2006, widen the scope of electronic discovery to include home computers, text messages, PDAs and Internet service providers. All may be open to discovery during litigation now.
“Mountains of data will be at risk so companies need to take action now,” says Barney Robinson of Butler, Snow, O’Mara, Stevens & Cannada law firm in Jackson. “The changes in electronic discovery hand plaintiff attorneys a powerful new tool, and they’re licking their chops about the new rules.”
Because most corporate information is stored electronically, office desk computers, laptops and servers have long been the target of discovery motions during litigation. The new rules allow discovery of previously unexplored territory.
Whit Rayner with the Watkins, Ludlam, Winter & Stennis law firm in Jackson feels the new rules do not bring about any earth-shattering provisions that attorneys didn’t have prior to December 1, 2006.
“Every time we have existing discovery rules, we get used to certain procedures to follow. With changes, everyone gets concerned,” he said. “This change is another technological advance. The rules need to be updated and this does aid in the discovery process.”
Rayner says the changes make it mandatory that parties get together and discuss discovery — the civil litigation process for both sides to produce physical things for inspection of anything relevant to the claim in a suit.
Robinson points out that before the electronic age, this process produced many paper documents — banker’s boxes of memos, letters and other paper correspondence. Now, he says it’s estimated that only 5% to 7% of evidence is created outside a computer.
“Everything comes from a computer, and the new law says everything must be produced in its native form,” he said. “Now we must be given electronic stored information (ESI) in the form it was originally created whether that’s a Word document, jpeg photo or whatever.”
Rayner and Robinson stress that the discovery process also includes metadata, the information that reveals everything about an electronic document, including every person who read it, changed it and the date those actions occurred.
“Everyone should remember that nothing is really deleted and metadata is important,” Rayner said. “This change underscores that data is always out there and points out the necessity of organizing electronic files. It will be difficult to separate what’s relevant and what’s not.”
He adds that businesses need to treat electronic files just like paper files and maintain good organization of them. “It’s easy to lose track of files and forget that someone may see them someday,” he said. “We feel some apprehension about the change in the law, but overall it’s welcomed by lawyers.”
Robinson lists three reasons expanded e-discovery poses problems:
• It offers a rich source of information that plaintiffs haven’t considered before.
• Potential intrusion into sensitive personal data may pit private interests against corporate interests and increase the pressure to settle.
• E-discovery can wreak economic havoc on an unprepared
“This has the potential to introduce conflicts of interest with employees working from home. The employee may be looking at sites he doesn’t want his employer or spouse to know about,” he said. “The employee may get an evidence eliminator to wipe his computer clean. Then an independent examiner finds it’s empty. That can be bad and embarrassing for the company and the employee.”
Rayner says a company’s e-mails may not be segregated, bringing up the question of whether or not all must be disclosed. The process of separating electronic mail if required for litigation can become expensive and unwieldy.
“In that case, the court can order the party requesting the files to pay for the process,” he said. “That gives some protection to companies.”
Robinson is advising clients to act now in a collaborative manner. “IT, management and outside counsel need to be present at the table to construct a policy and procedure that will address the method of organizing and storing electronic files,” he said. “It needs to be moved out of the normal system and can be a pretty huge task. Most IT people are doing many other things and they’re not preserving evidence with all metadata.”
He urges that companies can’t wait until there’s a notice of litigation because every day documents are being overwritten. “We’re starting to see preservation letters explaining that all ESI with metadata be kept in tact,” he said. “Parties now have the ability to produce information in tact.”
He and the other attorneys at Butler Snow recommend the following steps:
• Remember that deleted data are retrievable in whole or in part from your hard drive.
• Make sure the architecture of your system segregates data so preserving relevant data are possible without disrupting your entire computer operation.
• If you lease copiers, printers or fax machines, make sure the vendor scrubs or destroys the hard drives at the end of the lease.
• Stop donating outmoded computer equipment to charity. The data stored within can still be retrieved.
State rules for civil procedures are very similar to federal procedures. “This change is applicable to state courts because state courts look to the federal courts for guidance, and I think state courts will adopt this change,” Robinson said.
Contact MBJ contributing Lynn Lofton at firstname.lastname@example.org.