What Your Business Should Know About Electronically Stored Information
Whether you are a business trying to protect yourself from a lawsuit, or you are an individual or business trying to sue another business for damages, electronically stored information (ESI) is vital. Whichever side of the lawsuit you or your business is on, a failure to understand Florida’s ESI rules and laws can lead to big trouble.
What is ESI?
Electronically stored information, as the name implies, includes any information that is stored on computers, phones, in the cloud, video surveillance, emails, text messages, or even social media information. If it comes from a computer or an electronic device, it is ESI.
As a general rule, if you are aware that a lawsuit is or could be filed, you are obligated to preserve (not destroy) any and all ESI that may be relevant to the lawsuit, regardless of whether the information helps or hurts your case.
When Must ESI Be Preserved or Protected?
There is some discrepancy, because in federal court, you are under an obligation to preserve ESI as soon as there is a likelihood of litigation, whereas in Florida, that obligation only arises when a lawsuit is filed, or when there is some contract that requires preservation. The problem is that your business never knows if it will be sued in federal or state court, meaning that you should adopt measures to protect your information as soon as it becomes foreseeable or likely that a lawsuit could be filed.
The court can weigh the expense, time, and overall burden of any request for ESI, against the value of the ESI being requested. If a request is made for you to produce ESI that would be very expensive and time consuming, and it is unlikely the evidence requested would reveal anything, the court can deny the request being made by the other side.
Most businesses that destroy ESI don’t do it purposely. They have computers that automatically write over data, or cameras that automatically overwrite video. Companies may delete old data, to make space for new data.
There is a limited exception for data that is lost because of routine maintenance, when the party did not have any knowledge that the data was relevant to a lawsuit or claim—for example, if your computers overwrite data every 6 months, and they have done so on a regular basis for an extended period of time.
However, if an employee just decides to delete emails about that potential lawsuit, that would not be “routine maintenance,” and you could be in trouble.
Non Parties to the Lawsuit
You have a little more leeway if your business is not a party to the lawsuit, but rather, is being subpoenaed for information relevant to a lawsuit. Again, you cannot destroy ESI if you are aware that it is relevant to a lawsuit, but any request for your ESI that is burdensome, or expensive to produce, can be objected to.
Call Pike & Lustig, LLP, at 561-291-8298 if you are being sued or have a claim or lawsuit against another business or company. Our West Palm Beach business litigation attorneys can help answer your questions.