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Preserving Evidence and Electronic Data


You probably already know that if you get sued, or even if you’re not sued, but there is a threat of a lawsuit, that you can’t throw away or destroy anything that could potentially be evidence in a case—even if the case isn’t filed yet, and even if there’s no guarantee a lawsuit ever will get filed.

And many businesses do a good job of preserving or protecting documents, or items, that could possibly be evidence. But what many businesses don’t do very well, is preserve items that aren’t physical.

We’re talking about electronically stored data, and many businesses overlook this information when it comes to preserving possible evidence in a case.

The Obligation to Preserve Electronically Stored Information

Not only is it generally the law that you have to preserve and protect any information that may be evidence in a case, but Florida has specific laws that relate to your obligation to preserve and protect electronically stored data.

That’s because it is just so easy to destroy or lose electronic data—much of the destruction can happen automatically, such as with video surveillance tapes that overwrites itself, or systems that automatically delete old computer data to free up space. Even just an employee innocuously pressing delete on an old email, can lead to problems.

The problem gets especially dangerous when workers work remotely, and they may use their own devices to do work things, and thus, you have no control over what they are deleting and when.

When Do You Have to Preserve Information?

You generally have to preserve any information that could be relevant, or which could even lead to the discovery of relevant evidence in a case. That includes anything that could lead to a case—so, for example, a demand letter could trigger the obligation to preserve evidence, as could notice from a  government entity that some investigation may be forthcoming.

Protecting Data

The best way to protect your business from destroying electronic data, is, of course, to maintain as much control over your data as possible—where feasible, having remote employees using company and not personal devices to do work.

Your computer tech people should set up remote storage for data that you don’t immediately need—somewhere that is off your servers but still accessible when and if it is needed.

Social media is also electronic data. If you take down or remove a post, make sure to preserve the information that was on the post—don’t just delete it forever.

What if You Don’t Preserve Evidence

There can be consequences for destroying evidence that ends up being necessary evidence in your case. The lost evidence can be interpreted against you, making it harder for you to bring, or defend against a lawsuit. In more drastic situations, a court could end up sanctioning you for destroying evidence.

Questions about protecting or preserving evidence in a lawsuit? Call our Fort Lauderdale business lawyers at Sweeney Law P.A. at 954-440-3993 today for help.




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