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Discovery Rules of the Digital Age

BEGINNING THIS MONTH, new rules regarding the discovery of electronic evidence go into effect, and they are likely to save companies time and money if they have to provide evidence in litigation.

These rules—part of the Federal Rules of Civil Procedure (FRCP)—affect the ways that companies must preserve and make available any e-mail, Word documents, Excel spreadsheets, PowerPoint presentations, and other electronic information in the case of civil litigation. Michele Lange, a staff attorney in legal technologies with Kroll Ontrack, explains that a committee has been reviewing the rules for years now to articulate a modernized definition of what must be exchanged in litigation. Since state rules tend to be similar or identical to the federal rules, the changes will likely affect state cases as well.

The issue arises from the fact that computers have made it easy for companies to keep more information than ever before, but much of it is difficult to access. When litigation arises, preserving and producing electronic evidence can be burdensome for companies both in terms of time and money, says Mark Rasch, senior vice president, security, and counsel with managed security services provider Solutionary.

The new rules will help companies avoid crippling discovery costs that have sometimes led companies that did not believe they were at fault to settle and avoid the exorbitant cost of discovery, Rasch says.

Under the new rules, responding parties need only provide electronically stored information that is “reasonably accessible.” Attorneys will, however, need to clearly substantiate before a judge a claim that some data—say, that archived on backup tapes—does not meet this test.

Lange says that corporations must be very aware of their IT landscapes so that they can be prepared to proffer the needed electronic evidence in case they are a defendant—or to argue why some information is not reasonably accessible.

The rules also attempt to make the electronic discovery process more manageable by mandating that lawyers conduct “meet and confer” conferences early on to discuss what is being requested and how it should be provided, including the format that the requesting party wants to receive the items in.

“The rules will now require counsel to think about these issues much more early on than they ever had to before,” according to Lange, “so we won’t be able to get down the road two years into litigation and say, ‘You mean I had to deal with backup tapes?’”

There are many other aspects to the rules of electronic discovery. Overall, “the goal is to provide some consistency,” Lange says, adding that the legal community is embracing the changes, because they will help counsel “to make better decisions and to be more effective litigators in the digital age.”