I ran across an excellent article by employment law litigator Jason Storipan of Stark & Stark on issues involving electronic discovery and employment law. Storipan cautions that employers must be aware and plan for the new electronic discovery rules:
". . . [e]mployment law is an area of the law that the increases in the use of technology in the business world increases the risk of a lawsuit. As any employer is aware, technology has changed the workplace, and its use can create a host of problems in the workplace that can lead to litigation. The new Rules on electronic discovery potentially can lead to even more problems for the unprepared employer. In this instance, the best way for the employer to prepare is to plan as if it is involved in litigation and meet with its counsel."
I agree with Storipan. Early preparation for electronic discovery by companies is crucial. The duty to preserve electronic materials begins when a company reasonably anticipates litigation, not once litigation begins. Spoilation is the destruction of of evidence. There are significant consequences for destroying evidence. Employers must be aware of how to preserve this evidence and comply with the new electronic discovery rules. Waiting until you get into litigation is not the answer.
FYI: Patent and information technology lawyer Brett Trout of Des Moines is also planning a series of posts on electronic discovery issues. Be sure to check those out.