Chapter § 1.07 e-Data

• Jurisdiction: United States
• Publication year: 2020

§ 1.07 e-Data

[1] Email Deletion

Although the adoption of email deletion policies varies widely among companies, it’s now undeniably a good business practice to implement some routine email deletion policy. Among other things, these policies help companies reduce their data storage burden and establish that the organization deletes emails in the regular course of business; in other words, that it’s not deleting emails to conceal harmful information that would be discoverable in litigation.⁵¹ Judges may impose sanctions when a company deletes email evidence relevant to a party’s claim or defense with a “culpable state of mind.”⁵² Regarding discovery, the 2015 amendment to the Federal Rules of Civil Procedure relocated the proportionality concept (i.e., discovery must be “proportional to the needs of the case”) to Rule 26(b)⁵³ to address the “explosion” of information that “has been exacerbated by the advent of e-discovery.”⁵⁴ But to this point courts have not imposed significant limitations on e-discovery, and many jurists are “skeptical that the 2015 amendments will make a considerable difference in limiting discovery or cutting discovery costs.”⁵⁵ One issue that may arise with email deletion is when a company, for unexpected reasons, needs to access deleted emails. Companies many times keep backup tapes for limited periods of time to protect themselves in those instances.⁵⁶ Storage limitations, however, often don’t permit a company to even keep backup tapes indefinitely.

[2] Databases

The companies participating in the roundtable discussed whether they had in-house databases for document and litigation management. The few that did used e-Track Products⁵⁷ or Thomson Reuters Legal Tracker.⁵⁸ While the systems are apparently helpful in generating quarterly and year-end reports, their features are limited. For instance, someone must enter important case-related information into the systems manually, including case updates and court rulings, changes to litigation budgets, and invoices outside counsel. However, since the roundtable, there have been advancements in collaborative software and other technology that may allow for data to be automatically uploaded into databases. We discuss collaboration technology at section 1.03[4].

[3] Extranets

The databases discussed above do, however, allow outside counsel to post updates and billing information directly into the company’s system. Outside counsel can also post case updates, budget changes, and other information via company extranets. Some companies have firms that host extranet sites for them, but this service can become more of a hindrance than a help. Not only does it create a conflict over whether to use the law firm or the company’s system, it also adds the tedious step of logging on to the law firm’s system as well as service issues beyond the client company’s realm of control.

[4] Data Protection and Cybersecurity

[a] Cross-Border Discovery Under the GDPR

There has been a long-standing tension between European data protection laws and discovery obligations in the United States and elsewhere. As we discuss in Chapter 9,⁵⁹ the General Data Protection Regulation (“GDPR”)⁶⁰ came into force throughout the European Union (”EU”) on May 25, 2018. The GDPR replaced existing data protection laws and introduced major changes and additional requirements that have a widespread impact on businesses around the world, irrespective of where they operate. One of the key features of the GDPR is that European data protection laws now apply worldwide. In addition to businesses operating in the EU, organizations located outside the EU have to comply with European data protection law with respect to personal data of EU residents they collected in the course of offering goods or services to individuals within the EU or monitoring of those people.⁶¹ In-house counsel should understand how the regulation affects their company and how they should handle...