 Legal Best Practices
Dangerous
Digital Information Email as “Exhibit A”
By
Christopher Griffin
Because electronic
information has become increasingly important in today’s
business world, it has become equally important as
evidence in modern litigation. According to MIT’s Center
for Technology, Policy, and Industrial Development, 50
percent of evidence in cases today is email, and U.S.
companies spend $4.6 billion annually to analyze those
emails. In addition, several courts have imposed severe
penalties on companies that failed to maintain or
produce electronic information in the course of
litigation discovery. In some of those cases they have
given juries an “adverse inference” instruction,
allowing the jurors to assume that unrecoverable emails
would negatively have impacted the defendant’s case.
And, in one such case, the court permitted this negative
inference despite the defense counsel’s repeated
directions to company employees not to delete any
electronic information, and requests to company IT
personnel to stop recycling backup tapes, finding that
those actions were insufficient because certain
electronic evidence still was not retained.
New Regulations
New federal court rules regarding litigation discovery
became effective December 1, 2006. Amended Rule 34(a)
changed the definition of “document” to include
“electronically stored information . . . stored in any
medium from which information can be obtained.” This new
definition removes any question whether electronic
records are included in a litigation request for
production. Thus, documents which now must be produced –
and therefore stored and searched – include those
maintained on personal computer hard drives, servers,
mainframes, home computers, PDAs, external drives,
digitally preserved voicemails, text messages, CDs,
tapes, flash drives, and floppy discs. That said, it is
critically important for companies to monitor employees’
use of these devices and remain prepared to search them
when called upon to produce litigation documents.
Perhaps because of the seemingly harsh results which
occurred in the cases described above, the amended rules
also include a “safe harbor” provision, which limits the
courts’ ability to order sanctions when electronic
evidence is destroyed pursuant to a company’s routine,
good-faith electronic information system/document
retention policies. However, this safe harbor is not a
“free pass” for the destruction of records by the
company’s normal procedures. That is, companies (a)
should destroy no documents relevant to threatened or
expected litigation, and (b) have a duty to preserve
back-up data if the information is “likely to be
discoverable and not available from reasonably
accessible sources.”
These duties are best met by creation of a “litigation
hold” process. Best practices regarding litigation holds
can be viewed in two parts. First, if no litigation
exists or is threatened, the company should understand
its legal obligations regarding document retention and
production. The company also should implement clear
policies for the retention of electronic records, and
develop litigation hold procedures that will occur when
the company learns that litigation is likely.
These proactive steps will allow the company to be
better positioned both to provide the necessary
documents in litigation and to demonstrate that, even if
some documents are lost, the company has done all that
it reasonably could be expected to have done to ensure
against that loss or destruction.
Litigation
Once litigation begins, the company should immediately
implement its litigation hold process, including sending
notices to its employees to suspend any destruction of
information that conceivably could be relevant to the
case. The company also should send notices to key third
parties, such as accountants and consultants, to request
that they too not destroy relevant information. Second,
the company should meet with IT and records management
personnel to ensure compliance with the litigation hold.
Finally, the company should continue to monitor its
compliance with the litigation hold in order to prevent
any inadvertent destruction of potentially relevant
documents.
Be Proactive
Once companies produce electronic information, they
often are disadvantaged by emails that are, in a word,
inappropriate. Hastily written emails taken out of
context often prove to be the “smoking gun” in
litigation. Too often employees send emails that appear
to be intended less to convey necessary information than
to impress others, vent frustrations, force premature
action, “pass the buck” to others, or simply to
entertain the reader. All of these types of email are
dangerous in the hands of one’s litigation opponents.
Thus, it is important that employees be instructed to
recognize and avoid dangerous electronic writing.
Primarily, this involves creating an awareness that
every email written and sent will be read by the
opponent’s lawyers, and often will be stretched severely
out of context. And, there are a few simple rules which,
if followed, will minimize the creation of these
problematic communications, that include:
-
Avoid careless admissions when writing to inform of
bad news.
-
Avoid exaggeration and minimize inaccurate or
potentially misleading words.
-
Provide only necessary information and avoid
irrelevant or unnecessary, excessive information.
-
Avoid “creative” writing with sarcasm, drama, or
“humor.”
-
Write only what needs to be said to meet the immediate
need, and only what one knows, not what one speculates,
or assumes to be true.
-
Avoid characterizations of
other persons, especially other persons within the
company, that are unnecessary to the message at hand.
Start educating your employees regarding email rules
now. If you don’t have a plan yet, now is the time to
implement one. Formulate your policies and waste no time
sharing them with your employees.
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Christopher Griffin is senior counsel with Foley &
Lardner LLP’s Tampa office. He is a member of the firm's
General Commercial Litigation and Appellate Practices. |
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