Our world is increasingly digital. All businesses including small companies now keep more information electronically. This highlights the question of what you must keep and what you can delete in the context of a business dispute.
You can now easily save all your data, but should you
Storage media is cheap. An external hard drive that can store more data that you can likely produce in ten lifetimes costs far less than the device on which you are reading this. But, keeping everything may not be practical or efficient. Not only does this create digital clutter, but if you ever need to have someone at a law firm look through it all, the electronic discovery costs can be enormous.
Florida now has digital preservation obligations
At first the Florida civil procedure rules differed slightly from their federal counterparts. Electronic discovery or eDiscovery is basically the exchange of electronically stored information or ESI in a civil lawsuit. The Federal Rules are on a five-year review cycle. The first time ESI entered those Rules was 2005 and they have been refined with the last significant ESI changes occurring in 2015.
Several years ago but a little behind the Federal Rules, Florida’s Rules embraced ESI. They started with requiring parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever was earlier. That changed with in 2015 when the Florida Supreme Court decided a case called League of Women Voters of Florida vs. Detzner in which the Court brought the obligation in line with the Federal Rules. Now, the duty and obligation to preserve relevant data in a civil lawsuit is triggered upon the reasonable anticipation of litigation.
Several years ago but a little behind the Federal Rules, Florida’s Rules embraced ESI. They started with requiring parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever was earlier. That changed with in 2015 when the Florida Supreme Court decided a case called League of Women Voters of Florida vs. Detzner in which the Court brought the obligation in line with the Federal Rules. Now, the duty and obligation to preserve relevant data in a civil lawsuit is triggered upon the reasonable anticipation of litigation.
What data does my business have to keep
The obligation to preserve relevant data upon the reasonable anticipation of litigation does not mean your business has to keep everything. The key terms are relevant data and reasonable anticipation. Data that is not relevant to the dispute or perceived dispute is not subject to the preservation obligation. Likewise, if there is no reasonable anticipation of a lawsuit, then no action is required.
Corporate attorneys that understand eDiscovery and regularly perform eDiscovery are the best resource for guiding you on what to preserve and when. Oftentimes the party seeking data will send a litigation hold letter at the start of or in advance of a lawsuit. The purpose is to place the custodian of the data on notice not to delete or destroy relevant information and to place the requesting party in a position late to obtain a sanction from the court should such destruction occur.
The Florida Rules provide for a safe harbor. To take advantage of that safe harbor protection offered in the Rules, your business should have and follow a written data management plan and preservation policy. A skilled business lawyer can craft these preservation protocols to minimize disruption in your business and protect if from spoliation sanctions.
Corporate attorneys that understand eDiscovery and regularly perform eDiscovery are the best resource for guiding you on what to preserve and when. Oftentimes the party seeking data will send a litigation hold letter at the start of or in advance of a lawsuit. The purpose is to place the custodian of the data on notice not to delete or destroy relevant information and to place the requesting party in a position late to obtain a sanction from the court should such destruction occur.
The Florida Rules provide for a safe harbor. To take advantage of that safe harbor protection offered in the Rules, your business should have and follow a written data management plan and preservation policy. A skilled business lawyer can craft these preservation protocols to minimize disruption in your business and protect if from spoliation sanctions.
What if I delete relevant data and what is spoliation
The response sanction for the failure to preserve relevant data is generally spoliation. The failure must qualify in that it must essentially be intentional and the data must be unavailable as a result. Spoliation can result in an adverse jury instruction or presumption that can significantly impact a the ability of a party to fully present their case. Thus, spoliation is something to be avoided.
How much will all this cost
A written data management plan and preservation policy is not expensive. It can be crafted around your existing protocols to minimize disruption to your business. You are basically buying future security for your business in a world where litigation is increasing and your business can inadvertently expose itself to a sanction for failure to preserve data. While there is no requirement to have these plans, failing to implement them is a plan to fail.
In eDiscovery there are two large costs. One is for the software and the other is the legal fees for the lawyers who use it. The software cost has dramatically decreased in the past decade. A quality business lawyer knows the vendors and can source the best one for your case depending on the type and volume of data you have. The more data you have to upload and store, the more expensive it can be. The legal fees depend on the billing arrangement with the law firm, but eventually someone has to look through some part of the data. So the less data the less time it takes and the less it costs. Thus, storing everything may not be the best answer mitigating further in favor of having a written data management plan.
In eDiscovery there are two large costs. One is for the software and the other is the legal fees for the lawyers who use it. The software cost has dramatically decreased in the past decade. A quality business lawyer knows the vendors and can source the best one for your case depending on the type and volume of data you have. The more data you have to upload and store, the more expensive it can be. The legal fees depend on the billing arrangement with the law firm, but eventually someone has to look through some part of the data. So the less data the less time it takes and the less it costs. Thus, storing everything may not be the best answer mitigating further in favor of having a written data management plan.
The takeaways on data preservation obligations applicable to Florida businesses
I have had the unique pleasure of teaching eDiscovery to many of our local judges in Palm Beach County as well as several in other parts of Florida. I have also taught eDiscovery to hundreds of lawyers and paralegals in South Florida. Electronic data is a natural part of our daily lives and those of our businesses. eDiscovery is also now a natural part of commercial and business litigation as well as other practice areas.
Our judges and lawyers are familiar with eDiscovery and the preservation obligations for ESI. As with most issues being proactive to understand your obligations to preserve certain data can only benefit your business. Doing so will aid you in determining whether a written data management plan and preservation policy is appropriate for your business.
Our judges and lawyers are familiar with eDiscovery and the preservation obligations for ESI. As with most issues being proactive to understand your obligations to preserve certain data can only benefit your business. Doing so will aid you in determining whether a written data management plan and preservation policy is appropriate for your business.
Written by expert business lawyer David Steinfeld
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for over 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business This article is provided for informational purposes only.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business This article is provided for informational purposes only.
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