This year, the Florida Supreme Court adopted rules addressing discovery of electronically stored information (“ESI”) in lawsuits. Electronic Discovery (“E-Discovery”) is how a Tampa Business Lawyer obtains ESI in business litigation.
Electronically Stored Information
As a Tampa Business Lawyer, in litigation I want to tell a story. Even better, I want to show it. I do this by requesting copies of business records and other documents that prove my client’s complaint or defense. In a paperless business world, electronic records quickly are being amassed by the gigabyte. Electronic record storage and retention is not just convenient, it is reality and under some laws mandatory.
No longer is producing paper copies of records to the other Tampa Business Lawyer enough. Corporations must give the electronic version also. This goes beyond scanning printed documents into a pdf. Rather, records created by a software program (aren’t they all created that way?) must be produced to the other business in their native format. For example, if your company uses Outlook for email, the original data file Outlook uses, the .pst file itself, is subject to discovery.
E-Discovery
Failing to abide by E-Discovery orders can have serious legal consequences. While the Florida rules do not have a pre-litigation duty to preserve records, businesses are governed by good faith in determining whether relevant information has been destroyed to thwart the judicial process. Businesses are advised to be very careful in this regard and consult with a Tampa Business Lawyer. Your company after all may be sued in Florida but in Federal court which arguably has more stringent standards.
The Federal rule requires preservation of ESI when there is “reasonable anticipation” of litigation. From that point on, ESI should never be destroyed even if your record retention policy has them next up for deletion.
Record Retention Policy – Ask a Tampa Business Lawyer
The basic question in producing discovery requested of you or your business is whether it exists and you have it. You should review this with a Tampa Business Lawyer. It may exist and you do not have it. Or you may not have it because it does not exist. In the latter case, the next question will be if it ever did exist, why don’t you have it?
It follows that a business should know who has its records. Are some maintained by employees off-site? Are entire drives backed up online? If backed up online, how long are backups maintained? Are some records on laptops, tablets, and smart phones? Are they on social media accounts or can they be derived from social media postings?
There are certainly records a business retains for historical value with no requirement they be kept. That is an area of document retention completely in your control. But what about records you must retain? Some laws may require you to retain employment records, inspection records, patient records, or financial records for 3, 5, or even 7 years.
Companies should have a clear record retention policy. A business being sued must be able to show why it does not have certain records it used to have. Following a valid record retention policy goes a long way to establishing your company didn’t start deleting ESI when it was threatened with suit. If you are unsure, contact Tampa Business Lawyer Nickolas Ekonomides.
