Nearly all of the information now being created and stored by businesses is being created and stored electronically. Paper files and multiple versions of hard copy are becoming a thing of the past. It is no wonder that federal and state commissions have amended court rules to recognize this trend, and included new obligations on lawyers and businesses (no matter how big or small) regarding electronically stored information (“ESI”).
The impact of these new court rules goes far beyond those lawyers and businesses actively involved in a lawsuit; yet businesses continue to remain unprepared to manage these new ESI obligations. In fact, a recent survey found that only 7% of corporate attorneys consider their companies prepared for these new rules.
The new electronic discovery (“e-discovery”) rules represent the federal and state courts’ first formal attempt to address real-life problems faced by trial lawyers in dealing with rapidly spawning electronic records. These rule amendments require businesses to: (1) understand their technology and keep track of ESI; (2) suspend any routine ESI deletion policies when a lawsuit is anticipated or risk exposure to severe sanctions, and (3) be aware of the new obligations imposed upon them.
Here are seven of the most common misconceptions businesses have about ESI and E-discovery obligations:
The law on e-discovery is so unexplored that even some judges and lawyers are not prepared for the ramifications. Therefore, the rules place a significant premium on knowledge and preparation. Principles of basic fairness, good case management, an understanding of your data and devices, and professional guidance will likely be the hallmarks in these changing times.
The last place a business wants to be is in court before a judge unprepared for E-discovery issues, and facing severe sanctions. Even worse, a major concern for businesses is that they face the possibility of being innocent of any wrongdoing but may potentially face significant sanctions for “sloppiness” or “ignorance” for failing to fully understand the E-discovery rules and requirements. Because ESI and E-discovery rules present novel and often difficult technical issues, and because those issues are new to businesses, courts and lawyers, early and continual attention to ESI is essential.
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