What, Me Worry about ESI?

Me Worry?A concise list of seven misconceptions that businesses have about ESI and their e-discovery obligations entitled “Why Your Business May Be At Risk…” from The Metropolitan Corporate Counsel. The authors are three attorneys from the New Jersey law firm Norris McLaughlin & Marcus.

Here are 5 of my favorite from the list:

  1. Since we are not presently involved in a lawsuit, there is no need to concern ourselves with these new rules. The reality is that there need not be an active lawsuit or court order in place for there to be an obligation on a business to preserve ESI.
  2. If we were required to save data every time a lawsuit is threatened, our company would be crippled and we’d lose our business. The reality is that the new rules recognize this problem and provide that a party need only preserve relevant ESI.
  3. Even if we were to lose relevant ESI evidence, the loss was accidental and not intended to destroy harmful information; surely a court would understand. The reality is that even accidental or innocent loss of relevant ESI is sanctionable when it could have reasonably been prevented.
  4. Many of our employees work from home and use their own personal computers; therefore, we don’t have to worry about those computers. The reality is that the new rules widen the scope of ESI to include personal home computers, cell phones, copy machines, fax machines, voice-mail, instant messaging, PDAs, websites, flash drives, etc. As long as your employees are working for you, it does not matter where they are located or what device they are using to generate electronic information related to your business.
  5. We’re too small of a business to have to worry about these changes. The reality is that if you are a business with a computer or any other device that generates electronic data, you are within reach of the new rules.

Link to story.