Electronic Data Discovery Impacts Small Businesses Threatened With Litigation

Business data used to be recorded upon paper and filed in manila folders within a cabinet. Not anymore! Most businesses have taken advantage of the computer age to go “paperless”. Without realizing it, many businesses have electronic data stored throughout their offices. The obvious places, desktop and notebook computers, aren’t the only places data is electronically stored. In addition, data is also commonly stored on hand held PDAs and Blackberry® mobile units – even iPods®. Often, electronic messages (data) have been uploaded to a central server. Of course, they also came from someone else’s server. Electronic records everywhere!

Why is knowing this important to you? Because on December 1, 2006, amendments to the Federal Rules of Civil Procedure addressing the safekeeping and production of electronic data became effective. Those rules now make clear that significantly greater obligations exist to maintain electronic data if one reasonably believes litigation may occur, and to produce all relevant electronic data if requested to do so during litigation. Many states’ civil procedure rules, including Florida’s, have been modeled on or originated from the federal rules and likely will be amended to incorporate the same or similar obligations.

What should you do? Businesses should immediately seek legal advise concerning their electronic data storage and deletion policies, and should get their lawyer involved to review electronic data issues as soon any litigation is either threatened or instituted against the business.