There are also legal consequences for failing to adequately preserve or search for electronic records during litigation. "A party has a duty to preserve all evidence, including electronically stored information…that it knows or should know is relevant to any present or future litigation." Nacco Materials Handling Group, Inc. v. The Lilly Company, No. 11-2415, 2011 WL 5986649 (W.D. Tenn. Nov. 16, 2011) (citing John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008)). If a court finds that a party deleted or failed to preserve electronic information, it can make a negative inference that the information that was not disclosed was harmful to that party. In addition, the opposing party can seek sanctions, attorneys' fees, E-discovery costs, and court costs in addition to the amounts claimed in the lawsuit.
As new technology continues to develop, the methods of collecting information during E-discovery will expand. Advancements in technology can be a double-edged sword in litigation. E-discovery techniques can give parties access to virtually all relevant data and information held by the other party, but the process may also require significant financial and time commitment. If managed properly, E-discovery can help uncover significant amounts of information to help you present your version of the case. If managed improperly, it can expose your company to additional sanctions or liability and distract from the substantive issues. Ask your attorney to explain the discovery process and the rules in your jurisdiction. Be candid, and ask your attorney to help you minimize the E-discovery costs and burdens.
Cheryl R. Treadwell is an attorney in the Construction and Employment Law Sections of Chamberlain, Hrdlicka, White, Williams & Aughtry in Atlanta. Her practice focuses on the resolution of construction disputes, as well as general commercial litigation and employment matters.