A Safe Harbor In Electronic Records Management Discovery

by on July 8, 2009 · 0 Comment POSTED IN: HR Info Center

If Your Electronic Records Management Accidentally deletes documents in normal operation, you’re safe

Then, finally, under Rule 37F, there is sort of a safe harbor that state that absent exceptional circumstances, a court will not be allowed to sanction you, if, you destroy something that results from routine good faith operation of your electronic records management system.

So, what is considered routine? Alteration or over writing in databases will be considered a routine type of operation. So, a deletion of, say, inboxes in your email management system to promote better storage or load management or disaster recovery.

Mind you, all of these provisions have to be done in good faith. In other words, you can’t just simply say, “Wow, we’re just going to start a recycling now, because we’ve been hit with this litigation and we can claim that it’s, that it’s a part of a routine good faith operation.” No. There is litigation holding to be put in place, to make sure that things don’t get destroyed that are relevant to a case, once you’ve learned of that lawsuit.

The recycling of magnetic disaster recovery tapes would also be considered routine operation of electronic records management. Automatic deletion of stale email, that’s not subject to litigation holds, might also be considered routine operation. And, then finally, manual and automatic systems to limit mailbox sizes.

So ultimately, the test is was the operation leading to the loss designed, programmed or implemented as part of the ordinary technical and business needs of the company. So, is it part of your routine operation of your electronic records management system that led to the inadvertent destruction of the information, as opposed to destroying stuff purposefully to try to avoid having to produce the information in discovery.

Edited Remarks from “How to Bulletproof Your Data Storage Strategy: New Legal Rules for Electronic Discovery” by John Isaza, Esq.

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