What is included in your business records may surprise you! Do you retain your e-mails? What about your meta-data? Electronic evidence is increasingly important in business litigation.
Business Records & Evidence in the Electronic Age
(and how it affects you)
For some years now computers and other electronic devices have become an integral part of carrying on business for many enterprises. In addition to using software programs for document creation and storage, text messaging and email have become a large part of our communication systems as has social networking. Necessarily, the law follows societal change and must adapt with it. In the result nowadays much evidence needed to resolve disputes is to be found stored in electronic format.
Generically, the law refers to this as “ESI” – Electronic Storage of Information. What now poses a greater problem for those involved in litigation is dealing with the volume, types and locations of electronic “documents” as the law, and the rules of court, require litigants to list, disclose and produce documents within their possession or control pertinent to the issues in the dispute. Reasonableness remains a guiding principle, however the substantive law and rules of court have developed such that a litigant who has not taken reasonable steps to keep such electronically stored information in a place, and in a manner that is readily ascertainable and producible runs the risk of being sanctioned by the court eg., having your claim or defence struck out (and thereby losing by default) or, alternatively, losing your case because you just didn’t keep or cannot find that email or text message that makes or breaks the case.
We recommend therefore that you design and implement a policy and procedure for the organized storage – retention, indexing and searching– of important electronic information to avoid a serious pitfall. A general policy for the routine destruction/deletion of such information when it becomes old, if also reasonable, will not likely result in censure from the court. The time interval for this may vary from enterprise to enterprise but the Income Tax Act Canada effectively requires document retention for 7 years so you may wish to use that as a guide. If unsure, seek advice.
Don’t forget your PDA’s, Blackberry’s etc., as well as social networking pages/sites – Facebook etc., Remember, if you want information to remain private, DON’T put it on Facebook or anywhere else on the internet.