The ABC’s of E‑data: A Discussion Related to the Issues Raised by Electronic Information

As the law pertaining to electronic data evolves, architecture firms must understand the issues around it.  Firms must be able to identify the electronic data involved in their daily operations and how to properly store and discard it. Importantly, as electronic data grows exponentially, firms must also understand rules of discovery requirements and what one may be required to produce in the event of litigation.

The AIA Trust report, The ABC’s of E-Data, offers an analysis of federal discovery rules and relevant cases aimed at helping the architect to identify and manage electronically-stored data in one’s firm to be able to preserve and produce it for any required discovery. Few companies have written policies outlining how electronic data will be retained, disseminated, destroyed or even created – due primarily to a general lack of awareness about the issues it raises.  Disclosure issues of hidden data are identified with suggestions on establishing and managing an effective information management system including how to find vendors to assist with metadata management and sample document retention policies.

The paper discusses the different types of electronic data, including metadata – the “information about information” – or hidden data that describes the history, tracking, or management of an electronic document. While it is difficult to remove, it can divulge information detrimental to a firm. Types of metadata and issues around managing it are discussed in detail.  The general rule is that a firm must provide the metadata with the document unless it timely objects to its inclusion.

It is also noted that the cost of information retrieval from backup tapes can be astronomical depending on the size of the company and how it utilizes and stores various electronic documents. Generally, each party bears its own cost of discovery; however, courts have some cost-shifting considerations as outlined in a seven-factor test. The cost of discovery for third parties that are not parties to litigation are less burdensome.

The scope of the duty to preserve electronic information has been expanded in recent years.  One who anticipates or is a party to a lawsuit must not destroy unique, relevant evidence and the duty to preserve information extends to all employees who may have discoverable information. A firm should instruct its employees to comply with a valid document retention policy – but must suspend its usual policy for a litigation hold once it reasonably anticipates litigation.  There are consequences for a firm involved in litigation that is unable or unwilling to produce required documents, especially if document destruction or alteration is involved.

The paper concludes by discussing the prevalence of mixed data environments that most firms have, commonly using both paper and electronic data and raising the issue of whether to maintain two separate systems.  How to go about setting up a document management system is briefly discussed, with sample document and data retention plans provided. Since the law of electronic discovery is continuing to develop, it is important for professional firms to understand various types of electronic information, how to organize it, and how to protect themselves as regards electronic discovery.  The paper outlines steps to help ensure appropriate protocols in a firm to minimize risk while navigating the proliferation of electronic information.