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New E-Discovery Rules Take Effect

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					GCC NEWS FEATURE                                                                                      www.lawcrossing.com      1. 800.973.1177




New E-Discovery Rules Take Effect
[By Jen Woods]
On December 1, amendments to the Federal Rules of Civil Procedure (FRCP) relating to e-discovery went into effect.




After a five-year review, the Supreme               information relevant to cases. Such tools can     The new rules also state that a court may not
Court approved the changes, which require           store electronic evidence, including faxes,       penalize a party if electronic data is lost as
companies and other parties involved in             emails, voicemails, and text messages. In         a result of routine operation of an electronic
federal litigation to provide electronically        addition, companies’ internal systems contain     information system. Also, the amendments
stored information as part of the discovery         significant amounts of corporate information      provide guidelines on how companies can
process, during which both sides of a case          that can be used as evidence in trials.           seek exemptions from providing data that is
share evidence before trial.                                                                          not reasonably accessible.
                                                    According to the new rules, parties involved
The new rules mean U.S. companies will need         in federal litigation must address electronic     Employers can take steps to avoid losing
to know where corporate and personal emails,        discovery-including how data was saved,           important electronically stored information.
instant messages, voicemails, and other             forms of production, and privilege issues-        Ford and Harrison, LLP, a labor and
electronic data are stored in case they are sued.   during the initial meetings before trials.        employment law firm, recommends
                                                    Anyone, even someone not named as a party         developing electronic preservation policies
The changes were implemented because                to the litigation, may be required to provide     that provide consistent processes for
electronic documents, which are vital               electronically stored information.                deleting old emails and instant messages.
components of business operations, can be
used as evidence during trials. For instance,       Locating electronic files and determining         The firm also recommends that every
web-based emails can help prove intent, as well     whether they contain information pertinent to a   employer designate one person from the
as provide facts. Both corporate and personal       lawsuit can be difficult. Counsel might have to   technical department who will be notified
email accounts, like those provided by Hotmail      work with employers’ technical departments to     when discovery requests for electronic
and Gmail, can be recovered from users’             find certain types of electronic data.            documents are made. This person will also
computers. Also, email attachments that are
                                                                                                      be responsible for ensuring compliance with
downloaded to temporary files can remain on a       Also, according to the new regulations, the
                                                                                                      litigation hold instructions.
computer’s hard drive for a long time.              party requesting electronic information
                                                    can specify the format it wants the data in.
Like email services, instant messaging                                                                To ensure compliance with the new regulations,
                                                    If the requesting party does not ask for a
programs are available in both corporate                                                              employers should establish electronic-
                                                    specific format, the responding party must
and public formats. Companies can save                                                                communications policies and document-
                                                    state the format it intends to use ahead of
online conversations, which remain on                                                                 retention policies before lawsuits are filed.
                                                    time. Therefore, it is important that counsel
computers for long periods of time. Deleted
                                                    understand the different formatting options
conversations can also be retrieved.                                                                  ON THE NET
                                                    for electronic data.
Voicemail can also play a significant role
                                                    Counsel will most likely have to work with        Supreme Court of the United States
in a trial, and voicemail is currently being
                                                    companies’ technical departments to ensure        www.supremecourtus.gov
integrated into other messaging services.
                                                    that electronic data is properly saved. In
For example, voicemail messages can
                                                    the past, retention policies have not been        Federal Rulemaking
be attached to emails as sound files and
                                                    enforced as strictly for nontraditional           www.uscourts.gov/rules/newrules4.html
transcribed in emails to mobile phones.
                                                    sources of electronic data like instant
Portable devices like BlackBerries and personal     messages, emails, and voicemails as they          Ford & Harrison, LLP
digital assistants (PDAs) may also contain          have been for better-known IT sources.            www.fordharrison.com



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DOCUMENT INFO
Description: All About New E-Discovery Rules And Federal Civil Procedure Rules With Information About Federal Litigation, Personal Digital Assistants, Electronic Discovery, Employment Law Firm, Labor Law Firm And More.
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