E-Discovery Can Make or Break a Case

Emails, spreadsheets, text documents and other electronically stored information (ESI) are routinely requested as evidence in lawsuits. And destroying that data, or failing to produce it during the discovery process, can generate some harsh legal penalties.

Misconduct during e-discovery may involve deleting, destroying and otherwise failing to preserve electronically stored information despite court orders. In cases where evidence is intentionally destroyed and lost, the actions prejudice the case and a default judgment in favour of the plaintiff is often entered.

Stay in Compliance

Guidelines for complying with e-discovery may involve:

Issuing a “litigation hold” to employees of a business when a lawsuit appears reasonably imminent. This means ordering that evidence be preserved until discovery is complete. The litigation hold should be periodically re-issued so that new employees are aware of it and it remains fresh in the minds of all staff members.

Ensuring key players understand what the hold instruction entails. This includes those who likely have information relevant to a case.

Instructing all employees to produce electronic copies of their relevant active files and ensuring that all tapes or copies are identified and stored safely. This may even require keeping them in a separate location to eliminate the possibility that backup tapes could be accidentally recycled.

Be Prepared

Businesses should be prepared in case they become involved in litigation. Companies should work with their attorneys to follow e-discovery best practices. This can significantly improve the ability to furnish electronically stored information. Your organization’s attorneys may also recommend hiring an experienced computer forensics professional who can help in several ways, including:

Locating and preserving data. Your company must be able to retrieve and preserve old information while maintaining new data. A computer forensics specialist can help assess an organization’s ability to do this. This “health check” can prove invaluable, especially if it uncovers a fundamental flaw in storage techniques that might have been uncovered only during the discovery process of litigation.

Maintaining a proper chain of custody. This helps ensure that data is unaltered and complete. If during litigation, the integrity or thoroughness of information is questioned, it may not be allowed as evidence. A computer forensics professional also provides assurance that data has not been manipulated.

Minimizing disruption. E-discovery requests can take on a life of their own and severely affect daily operations. A computer forensics specialist can help minimize disruption.

Providing insight and guidance. If the data to be turned over to the other side is potentially problematic, a computer forensics professional can warn a company’s attorneys. That puts them in a stronger position to handle unexpected issues and avert problems.

Testifying to the legitimacy of the discovery. Forensic computer professionals can serve 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 wind up in court, but it’s a good idea to ensure it’s ready — just in case. Your attorney and a computer forensics professional can identify the challenges your IT infrastructure may present, which can help your business be more efficient and cost-effective in the way it electronically stores and preserves information.