Electronically stored information includes any and all documents saved to a computer, with or without hard copies. These documents include sent or received emails.
The amount of electronically stored information can be vast. Even deleted email lingers on in some form in your ISP’s servers. If you initiate a lawsuit or are a defendant, you have an obligation to preserve your information.
- If you have damaging information, you must present it.
In the case of a lawsuit against you or your business, your information is subject to discovery by your opponent just as their information must be made available to you.
In order to properly gather and review electronic information, I strongly recommend hiring a third party company that specializes in the extraction of electronically stored data for lawsuits. Trying to do it yourself can lead to mistakes and increased costs.
- Any information that isn’t stored electronically, i.e. hard copies, also must be made available to your opponent during discovery.
Judges will not tolerate the destruction of information. If it were discovered in a lawsuit that you were deliberately destroying evidence – whether it’s harmful, helpful or irrelevant – it will definitely hurt your case. You might lose the lawsuit not on the merits, but because it was discovered that you tried to hide something.
If, however, you can demonstrate that you’re willing to go through the expense of preparing and protecting your information, you will gain substantial leverage in your effort to win the lawsuit. If for no other reason than the opposition may not have the willingness or the means to do the same.
Have you ever provided electronically stored information for a lawsuit? If so, what did you learn from the experience?