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What Is in Your Electronic Files?

In the modern workplace, it seems that employees are able to use e-mail, instant messages (IMs) and other forms of electronic communication virtually anytime or anyplace. Although this can be beneficial from a work standpoint, it also leaves a virtual trail for years to come. That could end up causing legal problems for the employer.

Once your company is sued, the legal process known as "discovery" begins. You may be required to turn over information buried deep in your computer logs. If you don't comply, you may be liable for fines or other sanctions. The Federal Rules of Civil Procedure provides courts with broad discretion for enforcing discovery requests.

New developments: Recognizing technological advances in this area, the Supreme Court recently approved significant changes in the application of the discovery rules. The revised rules, which officially went into effect on December 1, 2006, require employers to reveal details about the retention of their electronic records.

Specifically, the employer must explain the nature of the electronic files it has maintained, including e-mail communications, IMs, hard-drive records, photographs, sound recordings and other data. It must provide direction for turning over these records as part of the discovery process of the lawsuit.

An attorney representing an employee will be able to demand copies of these records in an electronic format. In other words, the employer cannot simply print out the records in bulk. This will save the parties from having to search through reams of paper to ascertain vital information.

The new rules are expected to open up electronic records to greater scrutiny. As a precaution, an employer may take steps to create logical boundaries for use of electronic communications such as restrictions on use of e-mail.

Finally, your company should develop an electronic retention policy that suits your needs. Of course, the policy should adhere to the new discovery rules, but it should not be overly burdensome or interfere with your ability to delete outdated information. Again, you will probably need the assistance of your information technology department.

Practical advice: It makes sense to coordinate your high-tech efforts with your legal obligations. It may be helpful to arrange a meeting of your key business advisers.

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