Electronic Recordkeeping: Is Your Business Ready in the Event of Litigation?
In the event of a lawsuit involving your business, relevant electronically stored information must be produced to the opposing party upon request.
This includes, but is not limited to, any relevant documents and communications such as e-mails, texts, messages, and other documents that may be stored on any of the business’s computers, cell phones, or other electronic devices. In addition, it includes anything posted on the internet, such social media posts, blogs, and online messaging, and anything stored in the cloud.
As soon as a business receives notice of a potential claim, whether through a request for relief from another party, or through formal service of a complaint, the business must ensure preservation of any electronic documents and communications that may be relevant to the case.
The intentional, negligent, or malicious withholding, altering, or destroying of relevant evidence, called spoliation, carries stiff penalties in court. In New Hampshire, the trial court may instruct the jury to assume the missing evidence would have included negative information, if it is determined that the following are true:
- The business had control over the evidence and had an obligation to preserve it at the time it was destroyed;
- The business destroyed the records intentionally; and
- The destroyed evidence was relevant to the claimant’s action and would likely have supported the claim.
Additionally, even if spoliation did not occur, the failure to produce electronic records may suggest to the jury that the business was attempting to hide negative information. Businesses should have a policy in place to regularly manage and monitor electronic documents and information to prevent inadvertent spoliation or an organizational crisis at the onset of litigation.
Wescott Law is one of the Lakes Region’s largest firms offering legal advice and representation in civil litigation matters to businesses and individuals throughout the state. Contact us today for a free consultation at info@wescottlawnh.com or (603) 524-2166.