The new federal electronic discovery rules became effective December 1, 2006. (See this earlier article for a more detailed description of the rules and the amendments.) Consulting companies appear to be hitting this hot and heavy as several of my clients have received marketing materials offering to assist with their electronic discovery needs. Many clients, especially those who have not been involved in federal litigation, have questions about electronic discovery and the impact of the new rules on their businesses.
In reality, electronic discovery of documents has been around for several years. The new rules have placed more emphasis on electronic discovery. In federal court litigation, the parties will now be required to address electronic discovery right up front in any lawsuit. In the past there were times where courts might have had questions about what was discoverable and what constituted a document for production purposes. Now it is unquestionable that all kinds of electronically stored information are discoverable including emails, spreadsheets, powerpoints, documents, etc. The parties will need to cooperate in order to exchange electronically stored information in a usable format. The organization of such information will take on a greater importance under the new federal rules.
A critical component of the rules is that if you anticipate ligation could occur or if litigation has already occurred you have a duty to preserve electronically stored information. This will help you avoid problems such the case described in this article.
This also brings to the forefront the need for a document and email retention policy. Many clients ask how long they need to keep certain documents. Unfortunately there is no magic formula but the answer varies with the industry and practices of each client and depends on the type of documents. The new rules do not require a document retention policy but recent cases involving the destruction of documents place a strong emphasis on having such a policy.