When companies litigate, some or all of the company’s records may be considered evidence. For example, Amy owned and operated CBJ Enterprises, a company that sold computer equipment and accessories. One morning, she was served with a lawsuit filed by a competitor. Her attorney filed a response, then the other side started asking for documents – and electronic records. She didn’t know how to handle electronic discovery, but her attorney was able to advise her on how to avoid some of the problems that occur when dealing with digital records.
Discovery Generally
After a lawsuit is filed, the litigants – usually at least one plaintiff and at least one defendant – begin the discovery phase of the case. During this time, each party sends requests for information to the other party, who then responds to the requests. In business litigation, the parties may have to locate and send copies of electronically stored information (ESI) in their discovery responses. In fact, this is called electronic discovery or eDiscovery. Paper records were sometimes difficult to assemble, but digital records have complicated the discovery process even more.
Electronic Discovery Issues
ESI covers a wide range of information, including:
“any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form…”
Typically, attorneys involved in a lawsuit will send a letter of instructions to their clients regarding ESI. It’s important to avoid some of the following issues that may occur when handling electronic discovery:
- Preservation. Parties to a lawsuit generally have a duty to preserve ESI.
- Spoliation. When someone loses, alters, or destroys evidence, it’s called spoliation. Doing this can lead to court-ordered sanctions.
- Authentication. It may be necessary to verify that electronically-stored information is genuine.
Some ESI can be considered privileged. Your attorney may file motions to protect this information from the public record, whether it’s ESI or hard copies.
Whether Suing or Being Sued, You May Need to Know About Electronic Discovery
Attorney Richard Sierra at the Florida Small Business Center assists clients like you with business and litigation matters. As always, Our Goal Is to Help You Succeed™. For an appointment, you may call us at 1-866-842-5202 or use the contact form on our website. we represent clients throughout South Florida, including Coral Springs, Coconut Creek, Boca Raton, Delray Beach, Pompano Beach, Sunrise, Fort Lauderdale, Miami, and surrounding communities.