Manage Electronic Evidence in Anticipation of Litigation

Today, over 90 percent of business documents are created electronically. ^[17] The proliferation of e-mail, instant messages, and other electronic documents requires employers to work closely with legal counsel and IT professionals to ensure that electronic business records are retained, IM and e-mail evidence is properly protected and preserved, and the organization is strategically positioned to battle a workplace lawsuit or regulatory investigation that involves electronic evidence.

Among the issues your legal team will want to address is ‘‘ spoliation,’’ the legal term that is used when evidence is destroyed— accidentally or intentionally. As part of your IM and e-mail risk management program, your legal counsel and IT department should work together to ensure electronic evidence is properly collected and e-mail and IM deletion practices are halted when a lawsuit is filed—or if the organization has any inkling that a claim is forthcoming. ^[18]

Occasionally, when litigators seek electronic evidence from their opponents, the goal is not necessarily to obtain and read through thousands (or millions) of pages of electronic files.

Sometimes the object may be to create a potentially costly and damaging spoliation problem for the opposition.

Failure to produce required IM or e-mail evidence may result in court sanctions that range from monetary damages, to instructions to the jury to draw an adverse inference about you or your case, to criminal penalties at the federal level. ^[19]

Just as you want to prevent spoliation, so too do you want to ensure that your organization’s electronic evidence meets the court’s admissibility requirements. After all, you want your organization’s IM and e-mail records to support your case, rather than be used against you and damage your position. To this end, one of your legal team’s jobs is to ensure that IM and e-mail evidence is authenticated, trustworthy, and clears any hearsay hurdles as specified by the Federal Rules of Evidence. ^[20]

When gathering evidence, you also want to avoid inadvertently waiving attorney-client privilege. One primary difference between electronic discovery and traditional paper evidence is sheer volume. In a case involving millions of electronic pages of data, it would be fairly easy for an attorney to overlook an e-mail or instant message between counsel and client, and thereby waive attorney-client privilege. ^[21] Best advice: Use your written rules and policies to instruct employees never to use IMor e-mail to communicate with a lawyer about current, pending, or potential future litigation.

A whopping 70 percent of all data today is stored electronically. ^[22] The use of IM and e-mail evidence is now standard operating procedure for litigators. Fourteen percent of employers in 2003 were ordered by a court or regulatory body to produce employee e-mail^[23]—up from 9 percent in 2001.^[24] You could be next. Prepare today to face the likelihood of electronic discovery tomorrow.

^[17]Kristin M. Nimsger, ‘‘Same Game, New Rules,’’ Legal Times, March 11, 2002, Vol. XXV, No. 10.

^[18]Ibid.

^[19]Ibid.

^[20]Ibid.

^[21]David H. Schultz and J. Robert Keena, ‘‘E-Trail Trek,’’ Verdicts and Settlements (July 18, 2001). See also www.krollontrack.com.

^[22]Ibid.

^[23]‘‘2003 E-Mail Rules, Policies, and Practices Survey,’’ conducted by American Management Association, The ePolicy Institute, and Clearswift. Survey findings available online at www.epolicyinstitute.com.

^[24]‘‘2001 Electronic Policies and Practices Survey,’’ conducted by American Management Association, US News & World Report, and The ePolicy Institute. Survey findings available online at www.epolicyinstitute.com.