Hoarding is the act of storing excessive amounts of anything for the future. In the world of electronic data, the term has come to mean the act of never deleting your data. As of September 1, 2012, parties in civil lawsuits in Florida’s State Courts now have new, specific procedural rules that allow them to seek and obtain electronic records, including e-mails, from parties and non-parties alike through the discovery process. This process is now commonly referred to as “e-discovery”. These new Rules will impact all businesses in disputes in the future, but the answer is not to simply keep everything.
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 the important topic of maintaining electronic data that is impacting on all businesses operating in Florida.
You Need a Plan
While it is very easy to store data electronically and the cost of so doing has substantially decreased in recent years, the better approach for any sized business is to invest the small amount of time and money needed to craft useful data management plans. Two different plans are necessary; (1) data management/preservation plans and (2) litigation hold plans. Both of these must be prepared jointly between the company’s IT department or someone knowledgeable in how the business is using and storing its electronic data and a business attorney who understands the legal area of e-discovery and has experience with business litigation.
A data management/preservation plan can be likened to a deletion schedule while a litigation hold plan outlines the process of how certain data will be held in a given dispute. Without these plans, a business will foreclose itself from taking advantage of safe harbor provisions built into the new Florida e-discovery procedural rules. That translates into potential sanctions and increased costs in a lawsuit. This proactive planning will not only save a business money later, it may also net a discount on insurance premiums for the business.
So what will this cost me?!
So what will this cost you? These plans are specific to each business because each business uses and maintains its electronic data differently. What is good for one may not be good for you. The cost is not prohibitive, but the cost of inaction will be great. Comments to the new Florida Rules and Federal cases in the e-discovery arena have set a clear tone that lack of preparation and a lack of understanding of this topic will not relieve a business or its counsel from their obligations in e-discovery and may very likley subject the business to greater costs. Further, multiple articles and information published by companies that provide e-discovery software state that the costs are greater where data is not managed or archived.
So what should you do?
The time to act is now. Gambling that your business might not be sued or that your electronic records may not be sought by a party in a lawsuit that you aren’t even part of (yes, your records can be subpoenaed even if you aren’t a party to a lawsuit) will expose your business to increased costs later. The Law Office of David Steinfeld in Palm Beach Gardens, Florida can efficiently and in a cost-effective manner craft and provide data management/preservation plans and litigation hold plans for your business. The Law Office of David Steinfeld can also perform a “check-up” of your business by reviewing key documents, such as contracts and leases, discussing whether other documents, like non-disclosure and non-compete agreements, are appropriate for your circumstances, and advising your business on its liability exposure based on its method of operating while suggesting alternatives to reduce your liability exposure. As the saying goes, an ounce of prevention is worth a pound of cure and in the e-discovery world, it is worth ten.