Corporations adopt new computer applications for business purposes. Corporations weigh the costs of software licensing, installation, hardware, and application management against the projected value of the new application and increased productivity and improvements in products and services. We hate even to write these next words, but perhaps corporations should consider one other factor, too. Corporations might want to consider the litigation implications, and related potential costs, of new computer applications and the new information they may create.
The litigation considerations involved in information technology upgrades include:
1. Will the application create new bodies of information or communications that the corporation did not previously generate or did not generate in a documented form? The classic example is e-mail. E-mail has to some extent replaced telephone calls and face-to-face conversations and has created a written record of those previously undocumented communications. Voicemail and instant messaging are similar examples. Less obvious examples include shareware and teamsites that provide for team or project message boards and shared drafts for review and editing. Similarly, extranet sites developed for communications and conducting business with suppliers generate a written record. Information technology that creates new written records will generate increased costs (and increased risks) if litigation arises.
2. Will the application replace forms of information or communications that were routinely produced in hard copy and now will exist only in digital formats? If so, the task of gathering and producing that information in future litigation may become more onerous.
3. If the answer to either of the first two questions is yes, what is the likelihood that the information might be relevant to issues in pending or future litigation?
If the newly generated (or preserved) information is likely to be discoverable, can the potentially relevant information be saved and, if so, at what cost? Some applications are not designed to save generated information because the information has no continuing business value. Nonetheless, if relevant to pending or reasonably anticipated litigation, the corporation may be required to preserve the information or face possible spoliation claims or lose potentially valuable affirmative evidence.
4. Even if the new information is not required to be saved, will the newly created information be saved automatically by the application itself(or saved intentionally by the application managers) beyond its useful business life cycle and beyond any legal or regulatory retention requirements? If so, an IT upgrade can create caches of information that the corporation must retrieve and review for litigation purposes at significant cost — even though there were neither business reasons nor legal obligations to save the information in the first place.
These considerations all fall on the cost side of the ledger. Of course, a new application also may generate documentation that helps the corporation defend or prosecute litigation. Those potential litigation benefits should not be ignored.
We hate to suggest that corporations must consider litigation-related issues when making the business decision whether to buy a new computer application. But, given the cost of retaining, collecting, and producing e-documents in litigation, that issue is becoming increasingly relevant. As those costs predictably increase even more in the future, the folks who develop computer applications may start thinking about these issues, too, and may develop applications that either do not retain information or, if they retain information, do so inexpensively and in an easily searchable format.
Oh brave new world that hath such concepts in it.