I was reading some articles on Media Post and Law.Com about a recent class action lawsuit filed by female employees against Publicis Groupe SA and their attempts to have the judge who issued an ediscovery ruling recused when I got a shiver down my spine.  Why? 

Because, quite frankly, ediscovery scares the bejesus out of me.

I recently had a case that involves three plaintiffs — none of whom work in an office setting, so we all thought ediscovery would not be an issue.  Unfortunately, the case is a disability discrimination case and there are electronic health files that became relevant based on a demand from the plaintiffs. 

Now, this is not a case where any of the three plaintiffs has a significant amount of lost wages or other damages.  Nonetheless, after approximately six months of motions, conferences and generally arguing over how the information was going to be produced, the clients have now had to produce the information.  They now face spending close to $75,000 to analyze the very small electronic file.

So, what does this have to do with having an electronic retention policy? Ediscovery is certainly not new but there have been many recent decisions expanding penalties to employers who do not maintain electronic information related or even possibly related to a lawsuit.  One way to avoid harsh court sanctions is to have a written electronic retention policy and actually follow the policy.

The simple truth is you cannot produce what you do not have.  Of course, you cannot destroy evidence in anticipation of or during a legal claim.  Accordingly, your electronic retention policy should have a litigation hold provision that addresses how information will be frozen as soon as you find out about a claim or a potential claim.

A good electronic retention policy can reduce the costs of electronic production.  If, according to your policy, for example, emails are automatically deleted after one year, then you will not have the problem of sorting through thousands of emails for years.  The downside of a very short retention period is that you may delete evidence that could be helpful to your case, so you’ll want to take that into consideration when crafting policies.

If you do not already have a comprehensive electronic retention program and you get sued, it is going to be difficult to explain to a judge why back-up tapes or other information was already destroyed.