Expanding Uses of Email, Text Messaging Social Media and other types of Data and the Permissible Storage and Access to such data.

AttorneyOver the past 20 years almost everyone has migrated from using letters, faxes and phone calls to emails and other forms of digital communication. There are many differences between these new forms of communication and those used previously. One difference, in particular, is the volume of such digital documentation, also referred to generally as “data.” The number of such electronic documents now produced is continuously increasing. Almost all businesses and professions as well as the legal justice system are presently struggling to process, store and retrieve relevant data for many purposes, within a reasonable time and expense.

The days when all documents potentially relevant to a law suit could fit in one file drawer are long gone. Even the parties in disputes of small value often generate a far greater number of documents containing potentially relevant information than similar claims of the same approximate value just ten years ago. Unfortunately, this rapid technology deployment has proceeded much faster than software tools have been developed to economically and effectively manage and retrieve relevant emails and other electronic documents, even in disputes having less than $250,000 in dispute. Most cases in suit have a realistic value of less than that.

Among potentially relevant documents, especially emails, there are often statements or other information significant in proving claims and defenses of parties to a lawsuit. Some of these emails are well known, such as those authored by leading businessmen who have engaged in violations of various laws, or government officials abusing their power. Most relevant and damaging emails never reach “prime time” but are involved in almost every legal dispute of any significance. Recently, however, the opportunity of obtaining those emails from the opposing party is being seriously challenged, by proposed rules which allow a party to avoid producing them if retrieval would be too expensive relative to the value of the case.
Historically, court rules for civil law suits have required parties to exchange all requested documents, including emails, in their possession relevant to claims and defenses in the law suit, during the “Discovery” phase before trial. Because the costs and time to recover and review those documents without effective software tools are not cost effective for most cases, rules governing access to documents in the opposing party’s possession are now being revised. In most cases, proposed rules will substantially limit discovery in ways likely to reduce the probability of parties’ finding electronic documents, particularly emails, significant to either or both claims and defenses. It has been Lee Watson’s experience, which he believes is similar to other attorneys in litigation, that emails have been relevant and effective in almost every case he has been involved in over the last decade. Not having access to opposing parties’ emails would put most parties at a significant disadvantage.

What is even more disadvantageous is that most documentation produced by employees is no longer under their control. It was customary a decade ago, before exchange servers and, more recently, cloud storage of data became common, copies of emails, spreadsheets, databases, letters and memoranda were more likely to be within the employees’ desktop or laptop hard drives and immediately available to the employee.
At present, it is far more likely all data, including that which employees themselves created and could be useful in litigation between employer and employee is not in the employee’s control, but in storage devices controlled by the employer. In addition, at present businesses are adopting “Bring Your Own Device” (BYOD) policies by which the employee can store and use the business data she created on her own Smart Phone or tablet. However, the employer generally has control under those BYOD policies to copy and “swipe” all such data from those devices for any reason including following abrupt dismissal of the employee. In any such instance, the files and other data on the employee’s Smart Phone are effectively controlled by the employer. Under the proposed changes in the rules by which federal and state court cases are administered, most employees and small to medium businesses could be seriously disadvantaged should litigation be necessary. The emails and other documents necessary for proof in litigation are now controlled by employers and larger businesses who have, or will very soon have, the power to object to producing such emails and other electronic documentation requested by the employee or small business, using the concept of “proportionality.” This objection is generally described as the time and expense to find, review and produce emails and other data requested which may be relevant to claims and defenses in the law suit, are far greater and more expensive than the likely quantity of relevant data in them.

Certainly, until reasonably priced and effective software programs are available to search and identify all relevant emails and electronic data from thousands of emails and other documents there will be legitimate instances where such a proportionate objection has merit. But it is quite likely this objection will be used to prevent employees, in particular, but small and medium-sized businesses as well, from obtaining relevant emails and other electronic records crucial to proving their case. Well-respected professors who are experts in court procedures, judges and litigation attorneys are very concerned about how this will interfere with the objectives of our judicial system until software is developed to assure all parties, small and large, the power and right to obtain all relevant and admissible emails and other evidence, regardless of who possesses them. The “proportionality” objection runs directly counter to that objective.

However, if the proportionality objection is approved in the form presently under consideration, it is recommended employees and small and medium sized businesses be proactive and make appropriate arrangements to at least retain possession of all electronic data, or meta data of such data, permissible under applicable terms and conditions of other agreements, rules and policies of their employers. In order to be certain such advance data collection is permissible, knowledgeable legal counsel should be consulted before making copies or otherwise retaining such data, even if you, alone, prepared it as part of your employment duties.


Please note, the contents of this website are for information purposes only and do not constitute legal advice and no attorney – client relationship is intended nor exists by the information provided herein. An attorney – Client relationship with Lee Watson only exists following the execution of a written Legal Services Agreement with him, a form of which to review is available on request.

Copyright 2014, Lee Watson.

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