By Bill Murray
With Andy Thibault
As the Internet matured as a long-term information holder and the prices of computers dropped, business learned of the necessity to digitize information in certain formats. From billing records and prescriptions to accident reports, court motions and real estate transactions, some companies have learned the hard way that their data must be safe and accessible.
For example, Hartford’s Brainard Airport was slapped by Connecticut’s Supreme Court for intentionally discarding an accident report. The case – despite pages of the standard legal mumbo jumbo – actually reflects common sense.
A plaintiff in a lawsuit was struck and injured by the wing of an aircraft while walking with his flight instructor. Because Brainard authorities tossed the accident report filed by a third party, the Federal Aviation Administration was never notified and did not conduct an investigation.
The 2007 ruling is considered a key “spoliation” case for Connecticut. Spoliation is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding. This particular ruling is significant because it reaches beyond the defendant owner of the plane that struck the student pilot to a third party, Brainard Airport.
Federal courts formally recognized the need to protect electronic data in 2006, and most states followed with their own versions of the Federal Rules of Civil Procedure. Key change: Before 2006, discovery and production of documents began shortly before trial; now, e-discovery begins as soon as a lawsuit is filed.
Frames of reference:
In the famous “Civil Action” case, recounted in the book by Jonathan Harr and the film starring John Travolta, Boston lawyer Joe Mulligan’s “discovery” at the onset of the Woburn, Mass. families’ action against W.R. Grace and Beatrice Foods was mostly a file of 1980’s newspaper clips and an Environmental Protection Agency report about trichloroethylene, known as TCE.
In 2007, a federal judge ordered Intel to produce electronic documents that if stacked in a pile would have been an estimated 137 miles high. Not only a lot of documents were at stake. In a settlement, Intel paid arch-rival Advanced Micro Devices $1.25 billion for antitrust violations in the chip-maker market.
We are rapidly approaching the day when the day when paper will be used only as a temporary medium for writing.
Many successful business owners and lawyers know little about the care and storage of electronic data. In future columns we will examine gaps in the Federal Rules of Civil Procedure, flaws in the operations of vendor hosting companies and the controversy over so-called certification of e-discovery skills.
Bill Murray is president of EdocMasters LLC, a company that takes the mystery out of e-documentation for the legal industry.
Andy Thibault, author of books including Law & Justice In Everyday Life, blogs at The Cool Justice Report, http://cooljustice.blogspot.com/
Published in Register Citizen 12/04/2011