Wednesday, November 08, 2006
New rules for electronic document discovery
As of December 1, 2006, several amendments to the Federal Rules of Civil Procedure will become effective.
Why do we care? Because they have to do with discovery of electronic documents.
And why do we care about that? Because increasingly electronic evidence is becoming a key issue in lawsuits, on both plaintiff and defense sides.
You can read more about these changes but I'll cover the high points:
1) These changes won't alter existing practice--they simply formalize and standardize existing practices in federal court. But the fact that these changes are coming is likely to put this issue even higher on the radar of anyone involved in, or interested in, filing an employment lawsuit.
2) These changes explicitly reinforce the fact that electronically stored documents are subject to discovery. Lesson: don't assume that because it's not a printed document no one will ever know.
3) Parties have a substantial burden to protect these documents once litigation is "reasonably anticipated." Lesson: don't start deleting files and e-mail once an employee complains. In fact, the duty to preserve is more stringent than the duty to produce.
4) These changes establish a process by which the parties should resolve disputes over the production of these documents.
5) Parties do not need to provide documents that are not "reasonably accessible" unless ordered to do so by the court. Lesson: although some evidence may be overly burdensome to produce, be ready to argue why.
6) We're not just talking about Word documents and e-mails. This category of evidence includes photos, instant messages, and voicemail (among others).
7) We're not just talking about files on your PC/laptop and the server. We're talking flash drives, PDAs, cell phones, etc.
This is not an area to tred lightly in, so if you have any questions on this topic, who ya gonna call? An attorney.