Technology Bytes - or Bites?
by Natalie Ditmars, Attorney
Businesses of all sizes rely heavily on the use of electronically stored information. Transactions and communications that used to be conducted in person, via phone or on paper, are now almost exclusively conducted through email and other electronic media. The resulting information, records and documents related to these transactions/communications are stored (whether intentionally or unintentionally) on various electronic devices. This increase in the use of electronic information is positive in many respects (increased business efficiency, reduced costs, etc.), but in the world of litigation, electronic information leaves litigants vulnerable to the time-consuming and costly electronic discovery rules and repercussions. Litigants can reduce their vulnerability through both education and planning.
In the event your business is confronted with the possibility of litigation, "Electronically Stored Information" or "ESI" could be your downfall and will undoubtedly cause headaches for three reasons: (1) you must take steps to preserve potentially-relevant ESI as soon as you become aware of the possibility of litigation, (2) you must track down and retrieve all relevant ESI if requested by the opposing side and (3) the content of some ESI may be extremely damaging.
ESI can be found in a variety of locations including desktop computers, laptops, servers, network repositories, backup media, file archives, and remote servers for email/internet usage. Preserving, tracking down and recovering ESI can be a costly and time-consuming process, especially in the case of deleted email communications (contrary to popular belief, "delete" does not equal destroyed or disappeared). Generally, once a party becomes aware of the potential for litigation, that party must take steps to preserve all potentially-relevant ESI. This includes putting a hold on any destruction policy the party has in place. When a party fails to preserve ESI, the party could face a number of judicially-imposed consequences (some severe), including monetary sanctions, adverse jury instructions, default judgment or dismissal of the lawsuit.
Preserving and producing all relevant ESI is only half the battle. Your case could be won or lost based on ESI, particularly hastily prepared and sent emails. Unlike the good 'ol days of sending actual letters, people send and receive hundreds of emails in any given day. The speed and informality of email communication is such that most employees do not put the care or thought into emails that they should. This could be due to the speed with which employees feel compelled to respond to emails, carelessness or a belief that since it is sent over the internet, it is not permanent. Hastily drafted and sent emails containing sensitive or harmful information can leave you, as the employer, left to defend the email or, worse still, liable for the information contained in the email. For example, if a supervisor in your organization forwards an inappropriate email to co-workers, you could be exposed to claims of harassment by one of the recipients. Problems resulting from the inadvertent "Reply to All" are legendary.
Regardless of the cause of informality in electronic communications, businesses, whether large or small, need to be careful and educate their employees regarding the appropriate use of electronic communications. It is important to remind your employees that email should only be used for appropriate business purposes. In this vain, it may be prudent to set up an email policy setting forth that email should be professional and courteous, not contain illegal or offensive statements (including those meant to harass or containing discriminatory language), only be used for business purposes, and that employees who violate your policies may be subject to disciplinary measures or termination.
Increased use of electronic communications and other electronically-stored information in today's business world is good in so far as it reduces costs and improves efficiency. However, with it comes increased responsibility on the part of businesses to ensure their employees use technology for its intended business purpose and to put policies in place to preserve ESI in the event they are faced with the possibility of litigation.