Digital records: avoiding spoliation

by Chirag Verma on July 14, 2015

How to avoid spoliation and sanctions when dealing with digital records

Electronic data is still on the rise -- and so are sanctions relating to the inadvertent destruction of such data prior to litigation. The lack of a responsible records management policy for digital data puts companies at increased risk for censure during litigation. As the volume of online records continues to grow, courts will be increasingly prone to imposing sanctions and fines -- holding businesses accountable for their records management practices.

These risks can be avoided, however. The answer lies in the implementation of a solid retention plan for all your electronic records (including web content, social media, etc). Having a records management policy simplifies litigation and ediscovery. It ensures that your web records will have an acceptable life cycle that includes capture, storage, and methodical destruction (when applicable).

Don’t rely on “safe harbor”

Although Federal Rule 37(e) provides protection for parties that have destroyed electronic evidence “in good faith”, according to a routine schedule when there was no expectation of litigation, companies must be careful not to lean too heavily on this “safe harbor”. There are some caveats to keep in mind:

  • … you already have an operating data management initiative. You must be able to prove that if data was destroyed, it was according to a schedule that was established before litigation began.

  • … you are able to place a legal hold on your digital data. Once litigation is anticipated, all records must immediately be held unaltered in case they are relevant. Your retention solution must put you in control of your electronic records.

  • … you can easily search your data and retrieve any files that are requested. Having a streamlined solution with powerful search features will empower you to dig up specific files from specific times, without wondering whether some have been inadvertently lost.

The safe harbor rule exists because no business can be expected to keep all digital records indefinitely. But if you don’t have a clearly defined policy for managing your data, the rule won’t get you very far in court.

Worth the investment

Some companies are concerned about the cost of implementing a retention system for their online content. The truth is, the investment is not as expensive as being caught unprepared for a request for electronic evidence. You will either pay for a comprehensive solution that keeps your digital records searchable and court-ready, or you will pay with increased costs and reputation damage when litigation takes you by surprise. Which would you rather do?


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