Ready or not, new electronic discovery rules go into effect December 1. In April, the Supreme Court approved amendments to the U.S. Federal Rules of Civil Procedure (FRCP) regarding e-discovery, which govern civil procedures in U.S. courts. The amendments apply not only to businesses, but also to any litigant in federal court, including nonprofit organizations, individuals, and even the government itself, according to John Montana, general counsel, Cunningham & Montana Inc.
While the amendments will not change the way businesses do business, experts say they may affect the way they currently organize, maintain, alter, delete, and archive electronic information. They also may make it easier and less costly for all organizations to manage and store such information.
"What they will do is impose a bit of order and reason on the process by which information is produced for lawsuits," Montana explained. "Depending upon how the courts apply the rules, there could be cost savings to litigants, since courts would be in a position to more actively limit discovery demands being made upon parties if the court determined that the costs were unreasonable compared to the benefits."
The amendments aim to make the guidelines clearer for companies and, specifically, for those who handle discovery requests for electronic information, such as corporate attorneys, information technology departments, and records managers. And they are dealing with these issues more frequently. In its 2005 Litigation Trends Survey, law firm Fulbright & Jaworski found that 90 percent of American corporations are involved in litigation, and the average $1 billion U.S. company faces 147 cases at any given time. According to the survey, litigation costs these firms an average of $8 million annually. In addition, e-discovery was named as the top new litigation-related burden for companies with revenues of more than $100 million.
Time will tell if the new rules will ease that burden.
The New Rules
Rule 16: The Pre-Trial Conference
First and foremost, the FRCP amendments introduce the term "electronically stored information" (ESI) into organizations' discovery lexicons. What the term encompasses is not spelled out but can be interpret ed to include everything from program files and voicemail to e-mail, websites, and instant messages. The new rules recognize ESI as a category subject to discovery, distinct from paper documents.
Amended Rule 16 requires the two parties involved in civil litigation to meet in a pre-trial conference within 30 days of the filing of the lawsuit to determine how to handle ESI. During this meeting, the parties must identify what data is "accessible" for the purposes of the legal proceedings, as well as agree on which records will be shared and in what electronic format (usually the original format in which the data is stored).
This meeting should establish the ground rules, or parameters, for the entire case concerning the production of ESI and the preservation of evidence.
"That conference is an opportunity to educate the court as to the realities of electronic discovery in terms of difficulty, cost, and inconvenience, and to give the court the opportunity to set reasonable discovery limits for the case based upon those realities," Montana said. "Smart litigants will plan to take advantage of this and begin to locate personnel within their organization to assist in this process, and begin to develop a plan for presenting the issues at the conference and educating the judge so as to obtain reasonable discovery limits."
Rule 26: Privilege, Disclosure, Discovery Scope & Limitations
This rule addresses initial disclosures, discovery scopes and limits, and claims of privilege or protection of trial-preparation materials. It specifies that parties must disclose ESI as well as hard copies that may be used to support its claims or defenses. …