Our world is becoming increasingly digital. Businesses are keeping more and more information in electronic format, which highlights the question of what must a business operating in Florida keep and what can it delete in the context of a civil lawsuit.
The simple answer of keep everything may not be practical or efficient. Sure, storage media is cheap, but storing everything also means someone at a law firm has to look through it, which can translate in enormous electronic discovery costs in litigation; we’ll get to that in a minute.
Not long ago, Florida adopted procedural rules in civil cases (contract suits, car accidents, divorces, etc.) that were modeled largely on existing Federal Rules. Our Florida Rules require that parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever is earlier. So, for example, if your business isn’t suing or being sued, you can freely clean out your hard drive, but you might want to consult with counsel first or archive data just to be sure. You can still delete data if you are involved in a suit, just not data relevant to that dispute. If you do, bad things can happen called sanctions for spoliation of evidence.
So then, what’s the easy solution? Have a data management plan and preservation policy and follow it. If you do, you are in the safe harbor of the Florida Rules. What do you put in that Plan? That’s something a Board Certified expert in business litigation with experience with electronic discovery should craft for you.
Now, what is electronic discovery you asked? It is the process of obtaining and processing relevant data by and between parties in a civil lawsuit. More simply, it’s getting your e-mails and stuff in a lawsuit. It takes the old process lawyers used of gathering all the documents and exchanging them in a case and brings it into the 21st Century. It recognizes that businesses and people have a lot of data and it makes efficient use of technology to process that data. But, someone still has to look through a certain amount of that data and that’s what increases your costs.
In e-discovery as it is called, there are two large costs; the software and the lawyers who use it. The software cost depends on the vendor and there are about a thousand of them. Some charge for upload of data and for use. So, the more data you have to upload and store, the more expensive it is and that’s why storing everything isn’t always the best answer. The attorneys’ fees naturally depend on the billing arrangement with the law firm, but at the end of the day, someone has to look through some part of that data. So, the less data there is, the less time it takes, and the less it costs. Getting the picture?
So, in sum, storing all data for a business isn’t necessarily the best solution as doing so may inadvertently cause future e-discovery expenses to balloon in any lawsuit. In Florida’s State Courts, businesses now have a legal obligation to preserve electronic data when demanded (with limits) or when sued, whichever comes first. The intelligent reaction for any business or business owner is to have a proper data management plan and preservation policy for the business in place now to reduce e-discovery costs and exposure to liability later. For that, look to one of the 240 Board Certified business litigation experts in Florida who can guide you through this developing area of e-discovery.
About the Author
A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com. As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments. He also teaches Judges, lawyers, and paralegals how to perform e-discovery for Everything e-Discovery, LLC eveythinge-discovery.com. He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine. He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.
Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee. He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions. He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea. Informative videos and articles are available for free at davidsteinfeld.com.
The Law Office of David Steinfeld –
Tel: (561) 316-7905.