Do Not Delete

In the last few years, both the state and federal court rules have been amended to account for the increasing amount of information we create, store and transmit electronically. For instance, the federal courts here in Miami require that you "e-file" your court papers instead of making hard copies and paying a courier or office staff member to stand in line at the courthouse to deliver your papers to the court clerk.

Other changes also encompass the scope of what information can be recovered in the discovery phase of a lawsuit. You know, that part of the litigation in which the other side tries to learn as much about your case as possible and is allowed to cast a very wide net over your affairs to get at that information. This phase usually coincides with clients' actual acknowledgement that the quick and dirty victory which I forewarned them is not forthcoming is not, in fact, forthcoming. Anyway.... the point is, the law has now reached a point where it imposes a duty on people and entities to preserve their electronic data when it becomes possible that there may be litigation.

Now, the law on the use, maintenance and discovery of electronic information is evolving and is very far from being complete. But at least one court has held that "the obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation."

So, friends, the obligation is on you and you alone to make sure that the information you store electronically is preserved if you think that a lawsuit may be coming. Deleting files is not an option. Not only is it improper (for which there can be severe legal consequences), but there is an entire industry now devoted to retrieving electronically stored information. They can come in, image your entire hard drive and try to recreate the deleted files. You read that last part right- they can image your entire hard drive. Now, they can't necessarily turn it over to your opponent, but there is an inventory of the entire contents of your hard drive.

It's a changing world and the nature of litigation is changing with it. Unlike paper, which can be sifted and sorted, turning over electronic data can be very invasive and get into the bytes and bits of the most private and personal parts of your life. So, beware.