As companies increasingly integrate digital content like that created within the Salesforce platform, the business records produced by these platforms are fair game to be considered evidence during litigation. So, it’s smart to protect and retain your Salesforce records for e-discovery and legal events.

What you don’t archive can hurt you. In a recent an age-discrimination lawsuit, Brown v. Tellermate Holdings, Ltd., Tellermate Holdings failed to produce requested digital evidence from its Salesforce cloud service, and faced legal and financial repercussions.

The Browns worked as sales representatives at Tellermate before being fired. In their legal case against the company, both alleged age discrimination was involved in their termination and requested that Tellermate produce sales records from its Salesforce cloud service. The Browns asserted the records would show they met or exceeded their individual sales quotas, compared to younger employees at the company.

After several delays and initial claims that the data was not available, Tellermate finally admitted it could supply the requested data.  However, by the time this occurred, the records were no longer available, as they hadn’t been preserved correctly.

Tellermate’s inability to produce the required evidence proved to be costly. In addition to losing the case, the court ordered Tellermate to cover the Browns’ legal fees and costs incurred from a year spent on e-discovery procedures for the case.

This gives one example of how a broad variety of digital content platforms are being seen as integral to litigation processes. All businesses need to invest in modern archiving and e-discovery software that can preserve and protect data content from all their business software platforms.

E-Discovery of Digital Communications Extends Beyond Just Email

E-discovery is a process that happens early in civil litigation, and involves the exchange of information between the parties in a lawsuit or other legal action.

The Federal Rules of Civil Procedure Rules 26 and 34, state that any form of digital communications, such as email, social media, texts, enterprise social communications like Salesforce Chatter, website content, etc., can be considered electronically stored information (ESI). Companies are expected to be able to apply legal holds, preserve digital data in evidentiary (unalterable) format, and produce records within a specific timeframe when required. If a company can’t show it has procedures or technology in place to retain adequate records, this can be grounds for evidence spoliation.

How Can Your Company Prepare for an e-Discovery Event?

Is your company ready to face an e-discovery situation similar to Brown v. Tellermate? Here are three best practices that can help you prepare and protect your company’s digital records:

• Prepare for discovery proceedings. Because digital content is frequently requested during discovery proceedings, relevant content needs to be accessible. When subpoenaed for information, the responding party has no more than 30 days to respond according to Rule 34 of the FRCP. To ensure your company is always ready for discovery, if you use cloud-based applications, you must understand the terms of the agreement with your cloud provider, including who maintains control and ownership of the ESI; your provider’s data back-up policy; and your options for preserving content so it maintains its integrity and reliability.
• Know how to place legal holds. Legal holds are another important reason for retaining proper records of digital communications because legal holds supersede any existing retention or deletion policies that might be in place at your company. When a hold on data is required, all relevant data must be retained for as long as necessary. If your company can’t do this, courts have the discretion to impose a variety of sanctions, including fines, adverse inference instructions to a jury, payment of costs for a third party to review or search for data, or even criminal charges.
• Perform early case assessments. If another party (for instance, an ex-employee) threatens to sue your company, your senior managers need to be able to search an archive for information that will help them determine the potential liability.

The risk of running into problems when responding to e-discovery requests for digital content increases if you don’t have a good technology solution in place. A third party archiving platform with strong search and case management tools can help your company understand its position early on and either avoid unnecessary legal fees or an adverse judgment.

Take the steps now to ensure your company has the ability to produce forensically sound records that will be accepted by the courts—including your Salesforce records.