Electronic evidence and eDiscovery requests have long been subject to the test of undue burden. Given the cost and difficulty of collecting the evidence, does it create an undue burden on a party to do so? We’ve seen that electronic evidence becomes easier and easier to collect evidence over time. With electronic evidence, processes generally evolve to make access less burdensome. So at what point in the evolution of a technology does it become reasonable to expect an organization to preserve, collect and process that technology’s content without an undue burden?
The Email Example
Email is a great example. In the very early part of the last decade, it might have been considered an undue burden to produce an email as evidence on the grounds that it was both difficult and expensive to preserve, collect and process. To make the same argument now would seem ridiculous and almost certainly generate adverse inference.
A Dilemma for Courts and Legal Counsel
Both courts and legal counsel are faced with a dilemma. How do you track the improvement in technology? At what point does it cease to be an undue burden to collect and preserve electronic evidence? History suggests that shifts are not gradual. One or two well prepared parties or a high profile case can shift the landscape seemingly overnight. Such shifts in perspective can be a painful and expensive lesson for those that are not prepared. As organizations like Hanzo push back the boundaries on the types of social media and web related content that can reasonably be collected and preserved, the risk for organizations that do nothing becomes ever greater. Given the path that email followed in e-discovery, is it reasonable to think widespread collection and production of difficult social media, web sites, wikis, SharePoint sites and the like will be required by courts in the near future?
Some organizations can afford to wait for precedent to be set; organizations with a higher profile probably cannot. The acid test is this: can we afford to be on the wrong side of a judgement based on social media or web evidence?
Courts are becoming aware that a standard exists in ISO 28500 and that high quality, native format archiving tools are becoming increasingly capable and easy to deploy. Mock trials, discussions within the academic community and a more aggressive approach to electronic evidence by certain legal counsel all point to a tipping point in the near term.
Perhaps it’s time to perform your own test. Can you and should you preserve more of your web sites, social media streams, SharePoint sites? If you have concerns that you face a compliance or litigation related risk or your organization is just looking to get a better understanding of web and social media archiving technologies, get in touch. You can find us at Hanzo or download one of the many white papers that we’ve developed on the topic.