August 17, 2018 | Business Plans
Electronically stored information (ESI), whether emails, spreadsheets, text documents, or others, is routinely requested as evidence in lawsuits. Destroying that data, or being unable to produce it during the discovery process, can result in some harsh legal penalties.
Misconduct during e-discovery includes deleting, destroying, or otherwise not following court orders to preserve electronically stored information. A default judgment in favor of the plaintiff is often entered in those cases where evidence is intentionally destroyed and lost as these actions prejudice the case.
Stay in Compliance
Here are some standard guidelines often used in order to comply with e-discovery:
Issuing a “litigation hold” to employees of a business when a lawsuit appears reasonably imminent. This is ordering that evidence be preserved until discovery is complete. The hold should be re-issued periodically so that it remains fresh in the minds of all staff members and that any new employees are aware of it.
Ensuring key players understand what the hold instruction involves. This must include all of those employees who likely have information relevant to a case.
Instructing all employees to produce electronic copies of their active relevant files and making certain that all tapes or copies are identified and safely stored. This may very well require storing them in a separate location to eliminate any possibility that backup tapes could be accidentally recycled.
Be Prepared. All businesses should be prepared in case they become involved in litigation. Companies should work with their attorneys to establish and follow e-discovery best practices. This can significantly improve the ability to furnish electronically stored information. Your attorneys may also recommend getting additional help by hiring an experienced computer forensics professional who can assist in these ways:
Locating and preserving data. A business needs to be able to retrieve and preserve old information while creating and maintaining new data. A specialist can help assess your organization’s ability to do this. This “health check” can be invaluable, and should it uncover a fundamental flaw in storage techniques that might otherwise have been uncovered during the litigation discovery process.
Maintaining a proper chain of custody. If, during litigation, the information’s integrity or thoroughness is questioned, it may not be allowed as evidence. A computer forensics professional helps ensure that the data is unaltered and complete and provides assurance that data has not been manipulated.
Minimizing disruption. Daily operations can quickly be affected by extensive e-discovery requests. A specialist can help minimize these disruptions.
Providing insight and guidance. Should the data to be turned over be potentially problematic, a computer forensics professional can alert a company’s attorneys. This gives them a better position to avert problems and handle unexpected issues.
Testifying to the legitimacy of the discovery. Forensic computer professionals can be used as expert witnesses to testify how the information was gathered. This sends a strong message to the court that appropriate protocols were followed to ensure the information was complete and reliable.
Your company may never need to go to court, but it’s a good idea to make sure it’s ready — just in case. Your attorney and a computer forensics professional can help identify the challenges your IT infrastructure may present and can help your business be more efficient and cost-effective in the way it electronically stores and preserves information.