Unlike paper, documents created in digital form have a life cycle that survives long after sending it to the electronic shredder, known as control-alt-delete. More than 90 percent of all documents produced since 1999 were created in digital form. That's an immense amount of electronic data, especially when litigation is involved.
Electronic data discovery - the process of securing electronic documents such as word processing files, e-mails or other electronic records for use in a lawsuit - is at the forefront of legal cases across the country as a result of recent amendments to the Federal Rules of Civil Procedure.
The new amendments - which took effect Dec. 1, 2006 - cover the production of electronic information including e-mails, voicemails, digital images, text messages, instant messages, as well as anything stored on computers, handheld devices and computer servers. The new rules require early attention to electronic issues during discovery conferences and scheduling orders.
In June, the United States Northern District Court of Ohio outlined how parties should handle e-discovery issues if they could not reach an agreement. The court now requires parties to identify an e-discovery coordinator - either an attorney, employee of a company or a third-party consultant - knowledgeable about technical aspects of e-discovery.
"In the past, you could make requests and ask for information about electronic discovery, now the Northern District of Ohio has issued rules requiring that the parties in federal cases disclose electronic information," says David Drechsler, shareholder and chairman of the Cleveland litigation practice group at Buckingham, Doolittle & Burroughs LLP. "Instead of waiting for them to ask for things, now the onus is on the parties to voluntarily deliver information about your electronic mediums."
The changing legal climate means that more and more companies will be faced with electronic-records requests than ever before, says Terry Vincent, shareholder and member of Buckingham, Doolittle's litigation practice group in Cleveland.
"This has created a situation where you can't wait for litigation anymore. You can't even wait for a potential litigation," he says. "You have to start well in advance to have a protocol to preserve the necessary documents, and you have to ensure ready access to those documents and know what's there. At the same time, you don't want to have everything that was ever created."
Drechsler and Vincent advise companies to have a document-retention policy in place and be able to explain that policy to the court if necessary. Most attorneys will advise you to keep records for at least six years for tax purposes. However, electronic data is easier to maintain than paper so it makes sense to keep certain documents longer - anywhere from six to 10 years.