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Modified Rules Regarding Electronic Discovery Take Effect

Volume 5, Issue 17
December 15, 2006

Responding to litigation discovery requests or subpoenas for records can be onerous for employers especially when demands are made for electronic data and information. Several new amendments to the Federal Rules of Civil Procedure, which became effective December 1, 2006, address the increasing prevalence of electronic discovery in litigation matters. These changes impact all employers without regard to whether they are presently parties to a lawsuit.

First, the federal rules now specifically require a party to a lawsuit to produce electronically-stored data and records in response to discovery requests. Even if an employer is not a party to a lawsuit, it may receive a subpoena to produce employment records in an employee s lawsuit with, for example, his/her doctor, landlord, or insurance company. The amendments also change the federal rules governing subpoenas such that an employer who receives such a request now has an affirmative obligation to produce electronically stored documents or information.

Second, parties involved in a lawsuit will now be required to address electronic discovery issues early in the case. They must agree shortly after the defendant answers the complaint on how electronic discovery will be conducted and discuss the format in which electronic information is stored and how it will be produced. In addition, they must make an early exchange of electronic documents and data which support their claims and/or defenses in the lawsuit.

Given these changes, general counsel and others who respond to discovery requests or subpoenas or assist outside lawyers in doing so should become familiar with the type and format of information stored electronically by their employers, the accessibility of such information, and whether and how the operation system routinely archives or destroys such information. Once a request or a subpoena is received or a lawsuit is filed, there is often limited time to research electronically stored data, its format, and whether and how it can be accessed. Understanding this information will allow the company to provide an efficient and complete response or to explain why a response cannot be made. Moreover, because electronically stored data may contain embedded privileged or confidential information that should not be disclosed, an early understanding of such storage issues will help avoid production mistakes.

It is also important to adopt an electronic information management policy which addresses what data is stored, how it is stored, whether, when and how information is or should be routinely destroyed or archived, and when and how such a routine document destruction practice or general system operation feature will be placed on hold due to pending or anticipated litigation. While the amendments to the rules protect a company from sanctions if relevant electronic information is lost due to the routine, good-faith operation of an electronic information system, the good-faith component requires potential litigants to intervene to modify or suspend certain features of that routine operation to prevent the loss of information when a duty to preserve information arises. Typically, such a duty exists once litigation is reasonably anticipated or foreseeable.

For more information regarding the changes to the federal discovery rules, please see: http://www.uscourts.gov/RulesAndPolicies.aspx

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.