Reprinted with permission from CNET News
Fasten your seatbelts, legal mavens. In less than six months, electronic discovery as we know it will undergo very important changes.
Amendments to the Federal Rules of Civil Procedure (FRCP) that take effect on Dec. 1 are supposed to help reduce litigation costs. The paradox is that electronic discovery costs may increase, especially with respect to work that must be performed within the first 120 days after a lawsuit has commenced.
The purpose of these new rules is to provide early structure, uniformity and predictability. But the reality is that right from the get-go, the parties in a lawsuit will need to start evaluating with their IT teams and outside counsel where they stand in terms of their own electronic data.
Easier said than done. Hunting for the relevant electronic information in a lawsuit can take time. Data may be located live on the network or on various servers. It may be in hard drives, laptops, PDAs--or on backup tapes.
Figuring out the logistics helps determine what electronic discovery to demand from the other side in a case. Plainly, a party should not expect to demand a category of electronic discovery that it's not willing to produce.
Keep in mind that electronic discovery is expensive. Cases often get resolved before the parties and counsel have invested time and effort--not to mention the expense--of carrying out electronic discovery search, retrieval and production procedures. By forcing these processes early on in a case--at least in federal courts, by way of the new FRCP amendments--opposing sides in a legal dispute will have no choice but to move forward with electronic discovery right from the start.
What's more, the new rules will broaden the definition of electronic items that may be subject to discovery from "documents" or "data compilations" to include all electronically stored information.
In the past, parties to a lawsuit might have tried to shield certain types of electronic information from discovery. But when the new rules take effect, the other side conceivably will be able to demand everything from standard Word documents and e-mails to voicemail messages, instant messages, blogs, backup tapes and database files.
Of course, they still can argue that the burden of any particular demand outweighs the potential probative value of the electronic information sought. For example, demanding parties cannot automatically expect that responding parties will restore and produce backup tapes. Responding parties can assert that these tapes are not reasonably accessible and that their production would cause undue burden. They can also claim that the value of the tapes pales in comparison to the recovery and production efforts that would be required.
Given that the provision of electronic discovery is burdensome and could be extremely costly if every bit of electronic data were reviewed very carefully prior to production, the new rules will allow parties to retrieve inadvertently produced privileged information. Because it is not difficult to mistakenly produce privileged or proprietary electronic information, some very sensitive trade secret information should be designated as "highly confidential" for the eyes of outside counsel only.
There has been a lot of worry about potential spoliation (destruction of evidence) arguments when certain electronic information has not been saved. Judges now will have the discretion to disallow sanctions when a party has lost electronic information as a result of the regular good-faith running of an electronic information system. Still, parties must have in place solid data retention policies and practices covering information that could be appropriate for electronic discovery.
None of the forthcoming requirements is easy or cheap. But increasingly, we will need to deal with the burdens of the electronic age and not just its benefits.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to ejsinrod@duanemorris.com with "Subscribe" in the subject line. The views expressed in this column do not necessarily reflect those of Sinrod's law firm or its individual partners.
This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.
Duane Morris LLP, among the 100 largest law firms in the United States, is a full-service firm of more than 600 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets, and as part of an international network of independent law firms, Duane Morris represents clients across the nation and around the world.
