You may have heard or read that Florida updated its State Court Rules of Civil Procedure on September, 1, 2012, to specifically allow for the discovery of electronically stored information (ESI) in civil lawsuits. This change requires businesses to now manage their electronic data. You may have thought that this does not apply to your business because you are not involved in a lawsuit. You may have also thought that you can put off data management planning until you are involved in a lawsuit. But, you do not have to be sued or file a lawsuit to be subject to these Rules; your electronic records can be sought by a plaintiff or a defendant in a lawsuit that your business is not even named in.
This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about this important and deep impacting topic. Florida’s new electronic discovery (e-discovery) rules contain a safe harbor provision that protects businesses in the case if deletion or destruction of ESI, but only if it occurred through the routine operation of the data management system. What does this translate to for your business ? You need a data management plan in place in advance in order to take advantage of the safe harbor provisions later.
There are two ways that a plaintiff or a defendant in a lawsuit can seek and obtain your electronic records, including e-mail, if you are not a party to the litigation. They can serve a subpoena for the documents or they can serve a subpoena for deposition that includes a document request, called a subpoena duces tecum. Professionalism generally dictates that the party requesting the records would notify your business in advance and co-ordinate the request or deposition, but circumstances may require another approach, therefore, the first notice that your business may have that your electronic records are being sought in a lawsuit in which your business is not a party is a proverbial knock on the door from a process server.
So what do you do? The first and immediate step should be to contact your attorney or a Board Certified business litigation attorney if you don’t have one (you can find a list of all Board Certified business litigation attorneys on the Florida Bar’s website at http://www.flabar.org/ ). Assuming you have a data management plan in place and are following that plan, the costs associated with responding and producing the data are greatly reduced. In some cases, you may not even bear all of these costs, but if you do not have any data management plan at all, you expose your business to substantially increased expenses and even the risk of sanctions and penalties if your business can not locate or has deleted the data.
There are good arguments to be made that you lacked notice or had no duty to maintain the requested data, but now you have to pay your attorney to advance those to the Court and you have no guaranty that you will win those. Therefore, why place the business that you have worked so hard to build in such a predicament when it is much less expensive and much easier to put these plans in place now.
With the increasing pace at which businesses operating in Florida are storing data electronically and using e-mail to communicate, it only makes sense to establish a method to manage this data and enact policies for employees about social media usage and storing company data on phones, tablets, laptops, and other such devices that connect to your company’s servers. The Law Office of David Steinfeld can assist your business in preparing data management and litigatio hold plans to optimize your businesses’ opportunity to avail itself of the safe harbor provisions of the new Florida e-discovery Rules, to protct your business, and reduce your costs later if you are involved directly in a lawsuit or if your electronic records are sought by a party in a lawsuit. To discuss data management planning for your business either in person, by phone, or video chat, you can reach the Law Office of David Steinfeld at email@example.com or (561) 316-7905.