Winter 2006/2007 E-Newsletter

Rules of Electronic Engagement: The New Electronic Discovery Guidelines

Effective December 1, 2006, the Federal Rules of Civil Procedure, which govern civil litigation in Federal courts, were amended with respect to discovery of electronically stored information ("data"). Without advance planning, data presents evidence preservation and accessibility issues that can become pitfalls in litigation.

Under Rule 26, litigants, without request from adverse parties, must disclose information that is relevant to a case. But business information is often stored only in electronic form. As a result: (i) the volume of data presents enormous burdens of time and expense to retrieve; (ii) data is often altered or deleted by routine computer functions; and (iii) data may require particular software to be accessible. The new rules address these issues by tackling discrete problems that arise when data is sought in the civil discovery process.

First, a party may store data in archaic formats that are no longer reasonably accessible. The new rules require the responding party to identify sources of discoverable information that it did not search for this reason. The asking party may compel the responding party to search the sources if it demonstrates that their usefulness outweighs the burden of searching them.

Second, when huge amounts of data are turned over, privileged information may be inadvertently disclosed. The new rules establish a "recall" procedure under which the responding party notifies the asking party of the inadvertent disclosure of privileged data. The asking party may not use or disclose the data until the parties confer as to how to handle it. If the parties cannot agree, the matter may be taken up before the court. However, once privileged material is disclosed, the damage may already be done, so responding parties are well-advised to review data thoroughly before they turn it over.

Third, the new rules allow the responding party to provide access to responsive data without having to go through databases itself. Although this reduces the burden of responding, it should be exercised with care. By allowing the asking party to review databases itself, the responding party risks giving the asking party access to privileged or confidential data.

Fourth, parties often use data in incompatible formats. The new rules allow the responding party to provide data in its native format unless the asking party requests otherwise. The responding party may also object that a format requested by the asking party is burdensome. Again, the new framework shifts the burden to the asking party to demonstrate why it is unfair for the responding party simply to turn over data in native format.

Fifth, data is often deleted or altered automatically, and it can be difficult to change these functions in the event of litigation. Under the new rules, the loss of discoverable information because of routine, good faith computer operations is not sanctionable. This is a change from the earlier practice under which parties preserved discoverable information when there was a reasonable possibility of litigation. While automatic deletion narrows the sources that a responding party must search, it can result in the deletion of data that could be helpful to a responding party's case. Therefore, it may still be advisable to preserve discoverable data.

The new rules regularize electronic discovery and lessen the responding party's burden. But they also give parties new rights to object and argue about data before the court. Parties that keep data are advised to consult an attorney to determine how to proceed in the event of litigation.