Creating a Digital Evidence Policy

By John Wagley

Digital evidence is playing an increasing role when companies must defend themselves in court. “It’s almost impossible to have a case these days without digital evidence being involved,” says Steven Teppler, counsel at the firm Edelson McGuire.

For that reason, organizations need an information policy that details the types of electronic records that must be preserved, how long they must be retained, how they are secured against tampering, how they can be retrieved and provided upon request in the case of a trial, and how and when records will be routinely destroyed.

Organizations should take steps now to preserve data that could be important in a future lawsuit, Teppler says. The types of information that can be important to preserve may include information on starting the business, future business plans, sales receipts, or any documentation relating to intellectual property. Lawyers also recommend that companies preserve relevant communications from all of their top executives.

Such documentation can help a company prove “where my assets are and who owes me money.” They can also help protect the enterprise from illegitimate claims and help determine the company’s legal position in many other areas, he says.

In addition to preserving documentation, a company must be able to show that the electronic records have not been tampered with, Teppler says. It can be relatively simple to show information, including the date of creation and other metadata, when it comes to programs such as e-mail or Microsoft Word documents, for example. Such documents and information are also relatively simple to back up.

It can be more challenging to preserve evidence when it comes from proprietary software or programs, however, says Jill McIntyre, an attorney at Jackson Kelly. “It’s a hard environment to collect from and to make [evidence] accountable in a way that makes sense to people.”

There are creative ways to authenticate electronic records, however. For example, Teppler tells clients to consider using a Web camera to document when someone signs a document on their computer or as another means of showing that they received a text message relating to a large transaction. Teppler says that people can speak into the Web camera and state that they’re in the process of signing a particular document. They can also capture the image of a text message, for example. Clients may also want to go through additional steps, he explains, such as sending a receipt via text message and also showing it to the camera.

One of the biggest challenges surrounding digital evidence is simply the enormous amount of information that must sometimes be uncovered in litigation, says McIntyre. With storage space cheaper than ever, people may be tempted to save more than they need, she says, but examining documents during litigation can be very expensive. Sometimes organizations will settle matters simply to avoid the cost of finding all relevant e-mails and other documents, says Teppler.



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