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Pike & Lustig, LLP. We see solutions where others see problems.

When Do You Have to Preserve Electronic Data?


Your business has—and erases—electronic data all the time. It may be employees just routinely deleting emails. Or your server routinely purging old files or emails. Or even video surveillance, that overwrites itself at certain times.

But what you may not know is that by doing any of these things, you could get yourself into legal trouble, because there are times when you have a duty to preserve and protect that kind of information.

Preserving Electronic Information

Florida law requires that you preserve any and all electronic data, when you become aware that you may be subject to litigation, and the data may be evidence, or have information related to, any issue in the litigation. You even have to preserve any evidence or information that is reasonably calculated to lead to the discovery of admissible evidence, or anything that could be requested during a lawsuit.

This could include any type of electronic data, including that which is on cell phones, whether owned by company employees personally, or whether owned by the company itself. It includes messages, text messages, videos or pictures. It even includes social media posts and the information on those posts.

You have a duty to preserve this information no matter who has it—it doesn’t have to be a high level managerial employee.

Company Policies

There are steps you can take to try to make sure that electronic data is not lost or destroyed.

You should have a written policy that states what data needs to be preserved, how it is collected, and how employees will know when and what data is subject to being preserved.

You should have an employee whose job responsibilities include emergency notification of the need to preserve data; that employee will contact other employees, or IT professionals, to ensure valuable electronic data is not lost

You should ideally have backup for all data, instead of just destroying it or having it overwritten.

You should have a policy to access, keep, copy, or preserve data from employees who may leave the company for any reason.

When To Preserve?

Unfortunately there is no one clear definition of when exactly electronic data has to be preserved. There does not have to be an actual lawsuit filed against you. Courts have only said that the duty to preserve arises when it is reasonable to anticipate litigation.

This may include threats of litigation, or communication where a party says they believe you have done something that may lead to litigation. It may include cease and desist and other demand letters.

Being Sanctioned

If you fail to preserve electronic data, it can have consequences for you in court. A judge could sanction you, prevent you from making claims or defenses, or make presumptions against you in court, if electronic data is lost, destroyed, or just inaccessible—even if you did not act intentionally, or even if the destruction isn’t even your fault.

Call the West Palm Beach business litigation lawyers at Pike & Lustig today for help today to develop policies and procedures to protect your business.


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