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You MUST Know about Electronic Evidence... because YOU Create it Every Day: Four Tips Every Business Person Needs to Know

November 17, 2010 Email Blast To Select Itkowitz Clients -- Subscribe to Our Mailing ListBy Jay B. Itkowitz

The Internet's celebrity gossip circuit was ablaze this fall with salacious pictures and cell phone messages, allegedly depicting football star Brett Favre misbehaving luridly.  Among legal observers and investigating agencies, attention riveted not on the actual images or sound bites, but on clusters of invisible, computer-coded data embedded within them.

These buried digital nuggets of information could reveal who sent the photos and when, who received them, and what those recipients did as a result. In short, much of the information needed to answer questions of liability and culpability.

Welcome to the world of electronic "metadata" evidence and its offspring - the legal process called e-discovery. In this new world, anything that someone involved in a lawsuit or under investigation ever e-mailed, texted, revealed in social media, or digitally blurted can be dug up and used against them.

Discovery, in traditional legal terms, is the pre-trial stage where litigants must provide the other side with all documents relating to the matter at hand. In the past, this typically meant stacks and boxes of printed material.

In today's world, thanks to recent court rulings and regulations, it means courts allow high-tech investigators to search the hidden documents and data on any computer used by a litigant or a defendant for a "smoking gun." Moreover, if you are found to have deleted or erased potentially damaging e-mails or other e-data that figure in a case, it can adversely affect the outcome, as much as an outright admission of guilt.

E-discovery is now an element in most business litigations - real estate, contract disputes, intellectual property cases, personal injury -- not to mention divorce and criminal cases. If you feel uneasy or uncertain about this, regardless of whether you are now a party to a lawsuit, that would be a healthy reaction.

Business people are frequently careful about what they do and do not put into formal writing. Unfortunately, they often drop their guard in informal communications like emails and text messages. This lapse can come back to haunt them.

Cases can also be lost when an attorney does not adequately consider or understand these issues. Individuals involved in a matter have responsibilities too.

We have recently handled cases in which defendants who claimed ignorance of a misdeed were shown to have received emails about it, and where parties in a suit were found to have emailed statements totally contradictory to what they testified in court.

Resolving e-discovery issues is a new and complex aspect of law. Navigating it requires new forms of legal expertise and diligence. What an attorney knows and does about e-discovery issues can dramatically affect the outcome and the cost of litigation. If you have questions about these issues or need assistance on a matter concerning e-discovery, please do not hesitate to contact us.

Here are four things every business person needs to know about e-discovery:

(1) Never write or text anything you wouldn't want to have some day surface in a court.

(2) Should you become party to a lawsuit, resist the temptation to delete potentially damaging files from your computer. Cyber-sleuths working under court order can detect such cover-ups, and you will face serious sanctions. The obligation to preserve begins the minute it becomes apparent that you will be sued or suing.

(3) Have adequate backup and storage in place for all old files and emails. Neither "auto-deleting" nor "insufficient storage space" is an excuse for failing to preserve your system data, and will be held against you. Involve legal counsel and senior management when your organization's IT department makes policy decisions on system wide storage and backup.

(4) Never discuss a pending court matter in writing with employees, vendors, business partners or anyone except your lawyer.  Discussions with your attorney are protected by the lawyer-client privilege. Forwarding a file about that discussion to a third party, absent a privilege, shatters that protection.



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