RISKVUE ARCHIVE | FEATURE STORIES

Why You Should Think About Electronic Discovery

By Lisa A. Kainec

Effective December 1, 2006, we as lawyers have to concern ourselves with changes to the Federal Rules of Civil Procedure (“FRCP”). Boring, right? Glad you didn’t go to law school, right? Probably on both counts you are smiling right about now.

Well, these most recent changes to the FRCP have been in the works for the past six years and bring to the forefront the issue of what you and your organization must do in connection with any federal litigation and your electronic information. Did you know that “deleted” information really is not deleted from your system? That many programs automatically create duplicate copies of documents or store web pages in memory? That your back-up systems and archived data is a depository that can be requested, reproduced and rifled by attorneys who are suing your organization?

We’ve all read about the horror stories of thousands of employee e-mails being reviewed and disgruntled employees stealing electronic information. But every server, work station, laptop, PDA, cellular telephone, and off-site storage unit at your business (as well as those home work stations) also potentially contain enormous amounts of information that must be properly managed. Electronic documents also can contain what is known as metadata, which can reveal even more about when and how that document was prepared, modified, accessed and stored.

With this vast amount of data and electronic information potentially accessible, every organization should develop and maintain an up to date document retention policy. Such a policy must address what information exists, what is kept, the format in which it is kept, how long it is kept, and what happens when time is up. For example, many state and federal statutes have specific mandates about the length of time specific types of employment records must be maintained. The new Ohio minimum wage law is a fresh example of such a requirement.

Document destruction policies are just as important as document retention policies. Once an organization has notice of pending or threatened litigation, it must not destroy any relevant documents. However, documents can be properly destroyed in connection with a lawful document retention and destruction policy where no such pending or threatened litigation exists. However, those document destruction policies must strictly comply with statutory retention requirements and also establish your organization’s legitimate business reasons for destroying any records. Also, schedules for document destruction should be closely followed in order to avoid the inference that inconsistent destruction patterns suggest illegitimate motivations.

Now, back to those FRCP changes. Starting December 1, 2006, every organization that is involved in federal court litigation will be required at the initial court conference to address the issues of how electronic information will be handled. Each organization must know what is available, how it can be accessed, and be prepared to present arguments for or against access to particular aspects of its electronic information and systems. Addressing these issues now and adopting a thorough document retention and destruction system may save you countless hours of arguments with an opposing attorney about what should be made available in a lawsuit and the cost of producing volumes of electronic data that otherwise could have and should have been properly destroyed.

ABOUT THE AUTHOR

Lisa A. Kainec, Esq., is a shareholder with the Akron, Ohio, law firm of Kastner Westman & Wilkins, LLC (www.kwwlaborlaw.com). Ms. Kainec handles all aspects of employment litigation on behalf of employers in both state and federal courts, and counsels employers on a wide array of employment law issues, particularly ADA and FMLA compliance. She can be reached at 330-867-9998 or lkainec@kwwlaborlaw.com.

Reprinted with permission from the Fall 2006 issue of kwwlaborlaw.communicator, published by Kastner Westman & Wilkins LLC.

riskVue | The webzine for risk management professionals
February 2007