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August 18, 2014

Electronic Recordkeeping- Would Your Business Be Ready in the Event of Litigation?

In the event of a lawsuit involving your company, electronically stored information must be produced to the opposing party upon request. This includes, but is not limited to, text messages, emails and documents stored on all computers, cell phones, and other electronic devices. In addition, it includes social media posts, blogs, and online discussion groups; basically anything put out on the World Wide Web or stored on an electronic device or in the “cloud”.

Today the bulk of business records are stored electronically so it can be difficult for a claimant to prove his or her case involving a business that has destroyed their electronic records, either intentionally or inadvertently. For businesses, preservation electronic information is essential but problematic. It can be easily erased, or discarded, often with a simple click of a button and difficult, if not impossible to retrieve. Failure to produce electronic records carries a penalty and may suggest to the jury that the business was attempting to hide negative information that might indict them.

Federal courts have enforced electronic discovery requests per the Federal Rules of Civil Procedure for several years. New Hampshire solidified its requirements for preservation of electronic discovery in the revised rules effective March 1, 2013. As a result, as soon as a business receives notice of a potential claim, whether through a request for relief from a client or through formal service of a complaint, the business must ensure preservation of electronic communications.  While a court may limit the scope of electronic discovery to what is reasonably related to the case in order to prevent “fishing expeditions”, companies must manage and monitor electronic information regularly to prevent an organizational crisis at the onset of litigation.

The intentional or negligent withholding, altering or destroying of relevant evidence is called “spoliation of evidence.”

In New Hampshire, the trial court may instruct the jury to assume the missing evidence would have included negative information, if it is determined that the following are true:

1.) The business had control over the evidence and had an obligation to preserve it at the time it was destroyed

2) The business destroyed the records intentionally

3) The destroyed evidence was relevant to the claimant’s action and would likely have supported the claim.

 

Attorney Rod Dyer‘s experience includes all types of residential and commercial development, zoning and planning, condominiums, shopping centers, business and corporate representation and commercial transactions. 

 

August 18, 2014