If you get sued, or even if you sue someone else, it will trigger a review of your digital data base, known as e-discovery (as in electronic discovery) in the legal world. Do you know where all your documents are stored, what’s in those documents, and do you have a system for managing your data? If you answered ‘no’ to any of these questions, you could be in big legal trouble.
Today, when litigation triggers a production demand, the result can be so burdensome that settlement becomes the only option.
The rapid switch from paper to digital records that has swept through the workplace in the last two decades has had major implications for business-related litigation. In the past, a request for production of documents meant sorting through paper files crammed into file cabinets. Today, when litigation triggers a production demand, the result can be so burdensome that settlement becomes the only option. Here are five tips from attorneys who specialize in litigation readiness about how to manage your digital data so that you can find and produce what you need without going broke.
1. Know where your data resides.
Legal precedent exists that says a business is responsible for managing and potentially producing any data created at any time or any place that is related to your business. This includes documents, images, emails, voice messages and text messages created on and sent through laptops, thumb drives, cell/smart phones, iPads, external hard drives — basically any device that can create, store and send data.
Not only does this cover you and your employees, but any contractors with whom you work, and any business partners — vendors, customers, affiliates. This is even trickier than it sounds, but the first step in the process is figuring out exactly where all your information is. Your data universe needs to be defined and understood before you can proceed with protecting yourself.
2. Create a process for managing your data.
Once you’ve identified and mapped your digital data universe, you need to create a process for managing it. First, inform all those who are part of this universe that you are going to be managing all company related files, and that you need their help in doing so. Second, consult an attorney or records management expert about setting up a system to manage the data.
Finally, start using the process and ensure that all concerned know about the plan and are adhering to it. In the event of litigation, the court will want to know that you thoughtfully created a process and that you used it systematically.
3. Establish a legal hold response.
If you are sued, you will likely be informed that a legal hold will be placed on your data. This means that any normal process of creating a document and then deleting it as your storage process outlines is suspended. Those producing data related to your business need to understand the legal hold and pay close attention to it. Nothing raises a red flag like a document that was deleted after a lawsuit was filed and a legal hold was issued.
4. Standardize your storage formats as much as possible.
When faced with a request to produce documents, the courts generally want it to be collected and delivered in a single format. To get ahead of this beast of a curve, you’ll want to ask employees and others to use, whenever possible, common software systems and to save data in recommended formats. For instance, you may want to store images as jpegs rather than tiffs, and all contracts as pdfs.
5. Train everyone you work with (including yourself) on data management.
The sooner your data producers adopt best practices, the better off you’ll be if you wind up facing a request to produce documents. There are books and other types of guides available, as well as consultants who specialize in e-discovery and litigation readiness. Just Google “litigation readiness” and a plethora of choices will present themselves.
Essentially, you want people to use work devices for work only. You don’t want them sharing work data with people outside your business sphere. You want everyone to be on the same page with your data storage policies. You want them to be aware that every document they create, every email, voicemail and text they send can wind up as part of litigation. If you wouldn’t want a judge and jury to read something you wrote, don’t write it.
