Paper Trails in a Paperless World – How to Approach Discovery

Written with Mallory Miller JD

The classic Hollywood scene of employees frantically shredding documents as the FBI busts through the door might not be realistic in a modern age. However, understanding modern paper trails and how they can impact litigation is crucial for your business.

 

The term “paper trail” refers to documents (such as financial records) from which a person’s actions may be traced or opinions learned. In the context of litigation, the importance of paper trails is usually seen when attorneys start putting together evidence to prove their client’s case. However, these “trails” do not only refer to the traditional notion of a physical piece of paper. Instead, in today’s era “documents” could be email chains, internal messaging applications (such as slack), software logs or activity, digital financial records, private text messages, and more. These types of digital documents can be used against you by an opposing party or can be used to prove your case.

 

Paper Trails in Discovery

When discussing digital paper trials, it is also important to understand the reach of the court to mandate disclosure of all potential paper trials. One of the first stages of any civil lawsuit is called discovery, where each party is given certain legal tools to extract information, testimony, and documents from the other side to support their case. These discovery tools include requests for admission, interrogatories, depositions, and requests for production. Requests for admission allow the other party to ask their opponent to accept that very specific facts about the case are true, such as the date and times of meetings or basic foundational facts to the dispute. Interrogatories are questions regarding the case that one side asks and the other must answer. Depositions are formal interviews conducted by the opposing party that must be answered under the penalty of perjury. Finally, requests for production enable counsel to require the other side turn over documents that are relevant to proving their case.

 

Requests for production specifically bring paper trails into the forefront of litigation and allow each side to have access to the full set of documentary evidence. Since its amendment, Rule 34 of the Federal Rules of Civil Procedure has expressly included electronic information in the definition of discoverable documents. This means requests for production allow the other party to ask for all digital communications, including texts, emails, social media messages, or internal correspondence, and all electric and paper files, such as internal memorandum, billing and financial records, calendars, personal diaries, and more. Additionally, because we live in a digital age, parties can ask for the metadata associated with these files and the digital footprint left behind. In that sense, deleting these files simply from the application might not erase all discoverable information. The discovery tools and the widespread use of digital documents in business operations support developing a company policy that specifies any confidential or personal information should not be disseminated or communicated in a digitally.

 

Using Paper Trails to Your Advantage

 

However, in contrast to the need to protect the type of information shared virtually, having digital paper trails can also be a powerful tool in litigation for plaintiff’s to provide further evidence that supports their claims. If you believe you might need to bring a lawsuit to resolve a dispute, it is important for you to document all your interactions with the other party, bring independent witnesses to notate meetings or phone calls, and save any written correspondence. Having these documents could make the difference between a quick resolution of possible claims and a lengthy trial based on biased testimony from both parties. For example, some laws, like the Unfair Debt Collection Act, deem specific corporate practices illegal.  Having references to the specific illegal practices notated in a calendar, internal diaries of activity, or witnesses to the conduct makes bringing claims, such as under the Unfair Debt Collection Act, much easier. You can find a real-world story on how one family’s record-keeping saved their home and won a six-figure settlement here.

Jim White
[email protected]

Jim White helps people and companies facing serious financial injury by bringing and defending lawsuits and representing debtors in bankruptcy. He has successfully taken on banks, large financial institutions and other corporations in “David v. Goliath” cases. You can reach him at 919-246-4676.