Tech Tools: e-Discovery and Your Business

 

 

By Robin Conrad
Senior Vice President
National Chamber
Litigation Center
U.S. Chamber of Commerce

E-mails, instant messages, BlackBerry notes-they're all forms of electronic records now covered under recent amendments to the Federal Rules of Civil Procedure, the basic guidelines for filing civil suits. On December 1, 2006, the U.S. Supreme Court broadened the guidelines to include all types of electronic records, or Electronically Stored Information (ESI), in the discovery process-the process by which both sides in a lawsuit share evidence. So before you delete any e-mails or instant messages from your work computer or BlackBerry, you should be aware of rule changes most likely to affect your business in the event you are sued.

 

First, the guidelines now stipulate that in requesting documents for the discovery process, the requestor may specify the forms in which various ESI are to be produced. The rules also allow the responder to object to the request and cite the reasons for the objection and specify which form he or she intends to use.

 

Second, the amended guidelines allow the responder not to provide information he or she deems inaccessible, although a court order may be used by the requestor to secure the information. In this instance, you may have to prove that the requested information truly is "not reasonably accessible."

 

Third, all parties are required to discuss any issues relating to disclosure or discovery of ESI. These issues include the forms in which ESI should be produced; whether ESI is reasonably accessible and the burden of retrieving and reviewing that ESI; and any issues relating to the preservation of discoverable information, including nonelectronic information. 

 

Finally, there is a new rule creating a safe harbor for accidental disposal of ESI. If electronic records are purged during the normal course of archiving, a court has the option not to impose sanctions against the responder for failing to provide electronically stored information. However, keep in mind that failure to provide ESI may require the modification or suspension of routine data destruction methods.

 

Any type of electronic messaging and communication can be used in the discovery process, but if you're uncertain of which electronic records to keep, consult a seasoned litigation counsel with experience in the electronic discovery process.        

 

Thanks to the law firm of Morrison & Foerster LLP for assistance with this article.