As businesses increasingly rely on technology, they must understand the consequences of that reliance. In September 2012, Florida updated the procedural rules that apply in civil cases to expressly allow parties in lawsuits to obtain electronically stored information (ESI) through the Courts. The “safe harbor” provisions that were engineered to protect businesses on the receiving end of such requests only operate where the business can show it acted in good faith in accordance with a plan to manage and preserve its data. Thus, step one for every business operating in Florida that is subject to these new Rules is to have a documented plan.
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 coontrol over your electronic data, which is impacting and will continue to impact all businesses operating in Florida. To address the particular needs of your business and have a data management plan crafted for it, you may contact the Law Office of David Steinfeld using the contact information at the end of this article.
Initially, businesses stored data on individual computers and backing those up was a critical task to perform. Then came in-house servers, that allowed employees to share data and rendered the desktop a point of access to the information. Next, the cloud removed the server from the office and increased the company’s flexibilty. Today, we have a proliferation of portable and mobile devices that can access that cloud data anytime and have rendered the old norms obsolite in a very short period of time. However, like all progress and advancement, this too does not come without a price, which is the increasing difficulty of managing and controlling a company’s data.
In the legal world, electronic discovery, a.k.a. “e-discovery”, is fast gaining momentum as parties and their attorneys realize the potential treasure trove of information that can be obtained from a company’s ESI. Discovery in litigation is the process by which a party obtains information from the other side or outside parties. E-discovery is the discovery of ESI.
All businesses that operate in Florida and that are subject to its laws, including e-discovery rules, should have in place or be working toward developing data management and litigation hold plans. If they are not, they are exposing themselves to the possibility of sanctions if they are involved in litigation, which can be quite severe and detremental to the enterprise. However, one often overlooked aspect of managing data is the broad access granted employees and vendors by a company to its data through cell phones, tablets, and laptops.
While these devices are definitely convenient, they allow the person accessing data to store and alter it, resulting in a loss of control over the data by a company that has no defined policy or plan. As an example, imagine a that an employee downloads a contract from Company A’s data archives to the employee’s device, changes the terms, and sends it to Business B, who agrees to the terms. Then, the employee abruptly leaves Company A and a dispute develops over the contract.
Company A is now in a difficult position because it lacks possession of the very document it is accused of breaching. While Company A can obtain a copy from Business B in discovery, it may not be able to absolutely verify that what it receives is the agreement. Additionally, if Business B purposely or inadvertently altered the document and then agreed to the modified version, Company A may not even know to bring an otherwise valid defense because of its own lack of knowledge of the original document. Fortunately, problems faced by businesses associated with the ease with which data can now be transmitted by and through devices accessing a company’s data can be avoided with proper policies and plans.
My motivation for this article came from a very insightful recent Florida Bar Journal article authored by Robert C. Kain, a prominent Board Certified Intellectual Property Law attorney in Ft. Lauderdale (www.complexip.com). In it, Mr. Kain discusses the analysis of the Federal Computer Fraud and Abuse Act by various Federal Courts around the Country, highlights the split between them, and identifies some of the shortcomings of the Florida Computer Crimes Act as it applies to employees that take and abuse a company’s data. This situation should signal to businesses in Florida that unless and until the U.S. Supreme Court resolves the split, they are on their own to protect themselves with policies, procedures, and plans as to how those to whom they grant access to their data can use that data.
To reinforce this, imagine further that Company A had a policy requiring all employees to upload modified documents back to the company. If the employee followed that policy, Company A would be in a much better situation in the dispute brought by Business B. Even if the employee failed to follow the policy, Company A would be able to pursue the former employee, depending on its policy, and obtain the data from the employee. At any rate, it would certainly put Company A in a better position than telling the Judge that it didn’t have the document because it failed to put any policy or procedure in place.
The time to establish plans, policies, and procedures for remote access to your business’s data is now. As data useage and storage grows and the ability to access and alter that data through a variety of convenient and portable devices increases, business must protect themselves and position themselves to take advantage of the safe harbor provisions of Florida’s new e-discovery Rules by establishing data managment and litigation hold plans that account for and incorporate remote data access through portable and mobile devices.
About the Author
David Steinfeld, Esq. is one of about 230 of the almost 100,000 attorneys in Florida that is a Board Certified Expert in Business Litigation Law by the Florida Bar. He is the Owner of the Law Office of David Steinfeld, P.L. in Palm Beach Gardens and is rated AV-Preeminent by Martindale-Hubbell, which is the highest peer review rating an attorney can receive. He is a Member of the Florida Bar’s Business Litigation Board Certification Committee that oversees and regulates certification in that area, the Florida Bar’s Subcommittees on improving Florida’s LLC and Corporate laws, and serves on the Palm Beach County Bar’s Professionalism Committee and is Chair of its Business Litigation Education Committee. He is also a Member of the Association of Certified E-Discovery Specialists, a Fellow in the invitation-only national trial lawyer honor society, the Litigation Counsel of America, and was named one of Florida Trend Magazine’s Legal Elite for 2012 and 2013. He regularly speaks on business law related issues and his informative videos and articles on topics such as business litigation, e-discovery, real estate, and social media can be accessed atwww.davidsteinfeld.com. To schedule an appointment, you can reach the Law Office of David Steinfeld at firstname.lastname@example.org or (561) 316-7905.