On January 1, 2011, the Wisconsin Court System will join the Federal Courts in establishing rules that acknowledge the need for electronic discovery and regulate how e-discovery will be practiced. Discovery is a procedure in connection with a lawsuit in which both sides may request, among other things, documents concerning the issues in the lawsuit. Statistics have shown that over 90% of all documents existing in hard copy were originated electronically and may still be stored in that format. Over time, it became obvious that rules of civil procedure were needed in order to regulate the definition of electronically stored information and the manner in which it can be requested by one party to a lawsuit and produced as a result of that request.

Why should you care about attorneys’ rules of civil procedure? Because anyone who becomes involved in a dispute with another party which might or does result in a lawsuit has an affirmative duty under the law to protect evidence from destruction all evidence, including electronic evidence, which may be important to the dispute. This duty does not just begin upon learning about or filing a lawsuit -- it begins whenever a party knew or should have known that a lawsuit might occur as a result of the dispute or disagreement. Failure to preserve evidence can result in punishment by the courts under the Doctrine of Spoilation.

Wisconsin’s new e-discovery rules provide a safe harbor to a litigant under certain circumstances. For example, Wisconsin Statute §804.12(4m) provides an exemption from a claim of spoilation to a party who has lost or deleted evidence in the routine, good faith operation of its business or household, including operation of a computer system. The best way to defend against a claim of spoilation is to establish a policy for your business or household whereby documents are routinely destroyed or electronic data is deleted. While such a policy will not protect you or your business if evidence is destroyed after you have learned of the possibility of a lawsuit, it will protect you from a claim that the information was intentionally destroyed so that it could not be used in a lawsuit. The recommendation to establish this type of policy for documents and data, commonly called a “Record Retention Policy,” is primarily directed towards our business clients, but we advise that individuals create a simplified document estruction plan regarding their personal records for the same reason.

If you have questions about your obligation to preserve business or personal data or would like assistance in establishing a record retention policy, do not hesitate to contact your Petrie & Stocking attorney.

Roger Pettit