Due to the proliferation of electronic data over the past two decades, electronic discovery was the subject of amendments to the Federal Rules of Civil Procedure in 2006.
With the wide range of stored electronic data and the advances in the ways in which they are produced, the Rules concerning eDiscovery most likely will see additions and amendments on a regular basis in the future.
Widely viewed by small business owners as expensive, a contingency plan for eDiscovery is often ignored in favor of other investments in the company.
More pressing matters, such as utilities, inventory, and human resources take precedence.
They see it more as a "what if" cost, one that can be put off till it happens.
Unfortunately, lack of preparation not only hinders the owner's defense during litigation, it also proves to be more expensive.
A costly byproduct of litigation is the effect it has on the company's ability to do business as usual.
During preparation, the owner and the employees will be concentrating on supplying information to the attorneys, and not on filling orders, customer service, and other day-to-day aspects of their jobs.
The business, in effect, cannot grow during litigation if the company is not adequately prepared.
Electronic Discovery is the pre-trial phase of litigation in which each party can request electronically produced or stored documents as evidence.
In the old days, it may have been referred to as a paper trail, but today has been replaced by e-mail, texts and tweets, along with information on websites.
Basically anything produced or stored electronically falls into eDiscovery.
While you may have been able to deny making a statement years ago, you can't deny e-mailing anything which can be used against you simply because it has been recorded electronically.
"The power of e-mail is that it can take the casual and informal thoughts of a corporate leader and archive them as statements with prior knowledge and devious intent once the SEND button is pressed," Leland Macon wrote in his blog.
Macon is the President of Digital Current.
The company has offices in St.
Louis and Kansas City and provides digital document storage and eDiscovery services for companies in a wide variety of industries, including legal, medical and insurance.
But really, Macon says, any small business would benefit from having eDiscovery plans in place.
The best advice, Macon says, is to contact a reputable eDiscovery service.
Check references and make phone calls to existing clients.
Call attorneys who have worked with the company to make sure it provides accurate data and thorough processes.
The best plan is to be prepared for that "what if" situation.
"While we're able to help many companies who call us after they've been sued," Macon said, "it's much better from a cost perspective to do it prior to litigation.
"