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The Rules of Electronic Record-Keeping

Is it Data or is it Evidence?

The rule of thumb is to have a data-retention policy that requires your organization to save data records as dictated by federal and state laws (see "Wait--Don't Trash That Record"). Consulting an accountant, an attorney or a records manager can help you determine which business records you're required to keep. Check with ARMA International ( and the Information Requirements Clearinghouse ( "Sites To See" at right for more information on these organizations. Of course, with so much of today's enterprise data created and edited on computers and delivered via e-mail, the original copy and all draft versions of memos, letters and other business documents, including budgets and contracts, can live for years on your company's computers, servers and backup media. That's great for disaster recovery purposes, but it can prove troublesome if, during pretrial discovery in a civil suit, a plaintiff uncovers documents that support its claim. And if you find you're not required to save non-business-related records--employees' personal e-mail, for instance--don't. You'll save on storage costs and overhead, and you'll limit the potential liability of a "smoking gun."

No matter which side of a lawsuit you're on, it's important to suspend e-mail autodelete functions and stop recycling backup tapes at the outset. If you accidentally destroy documents you're required to present, you could be accused of evidence tampering or obstructing justice; at the very least you might cause the judge or jury to perceive that you have something to hide. You might also destroy documents that would refute your opponent's claims.

Discovery procedures require you to analyze and determine the volume of e-mail and other electronic data relevant to a case. Deleted files can often be found in unallocated disk space, so forensics experts can recover them even if they have been overwritten. You can extract information from PCs and servers using a bit-level imaging technology to find deleted files.

Either side in a case can request that the other produce electronic documents from servers, backup tapes, voicemail and e-mail systems as well as from desktop PCs, laptops, handheld computers and even personal home computers that employees use for business. It's basically no different from requesting documents contained in a file drawer. But that doesn't mean you can simply print out the electronic documents. Courts historically have rejected hard copies when the plaintiff requests electronic documents.

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