United States: Preparing for Imminent Changes to Federal and State Court Rules on Electronic Discovery

On December 1, 2006, sweeping changes to the Federal Rules of Civil Procedure governing the discovery of electronically stored information, or "e-discovery," are scheduled to take effect. In response, many state courts have amended, or are in the process of amending, their procedural rules regarding e-discovery.¹ This means that every federal court case and many state court cases will require attorneys to advise their adversaries of the details of their clients' electronic data and document management systems and, in many instances, to produce electronically stored information, including company e-mails.

Furthermore, the new Federal Rule amendments require that attorneys understand their clients' electronic data retention policies as early in the litigation as possible, regardless of the nature of the claims, the amounts in controversy (assuming the jurisdictional minimum case value has been met in federal court cases), or the nature of the clients' business. A company should be prepared to provide its counsel with specific information regarding the company's document retention policy, the forms in which electronically stored information are maintained, the company's use of backup tapes, and when and how backup tapes are overwritten or removed from circulation. To the extent possible, an information technology (IT) specialist should be assigned to educate the company's attorneys about the company's system of electronic document management and to assist the attorneys in determining the best way to produce e-discovery while minimizing the cost to and impact on the company.

Companies may want to identify the appropriate IT personnel to address e-discovery issues before the rule changes take effect. This person should gather and make available the general information the company's attorneys will be expected to provide at initial court conferences. Such information includes:

• Electronic document retention policy
• Litigation hold policy
• Descriptions, by category and location, of electronically stored information, including what types of equipment may hold electronically stored information, i.e., BlackBerries, laptops, networks, home personal computers, PDAs, cell phones, etc.
• The most efficient, safe and secure methods for the company to preserve and produce electronically stored information
• Potentially privileged information
• Categories of electronically stored information that may no longer be accessible

A company facing a large volume of litigation may wish to consider retaining one law firm to coordinate its electronic discovery so that its attorneys can appreciate the nuances of the company's electronic data retention system and aid the individual trial counsel in this regard.

Document accessibility can be affected by a number of factors, including a company's retention policy, routine overwriting of backup tapes, and lost, stolen or discarded equipment. Absent exceptional circumstances, sanctions may not be imposed for a company's failure to provide electronically stored information lost as a result of the company's good faith operation of its electronic information system. Armed with information regarding inaccessible information, counsel will be better prepared to inform the court as to what information is no longer available and thereby avoid wasting time and effort seeking unrecoverable data. Counsel may want to assist the company in determining which key employees have relevant information and in crafting narrow search terms geared toward the specific legal issues involved.

^{1. Details of the changes to the Federal Rules of Civil Procedure were outlined in a March 13, 2006, Duane Morris Alert. This Alert can be found on our Web site at}

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