E-Discovery: A Practical Approach to New Federal Guidelines

The full article is available in pre-formatted PDF format under the Additional Reading section.

INTRODUCTION
Changes to the Federal Rules of Civil Procedure, which became effective December 1, 2006, now require the parties and their attorneys to come to grips quickly with the discovery of “electronically stored information” (“ESI”). These new Federal Rules put a fine point on the need for law firms (and their business clients) to become familiar with and conversant about their clients’ use of computers and other electronic devices where ESI is stored. Planning for and educating businesses before litigation arises, particularly the IT staffs and managers in large corporations, about the impact of these new litigation rules is no longer just a “good idea,” but has become a necessity. Clients must understand that all data that is created and stored becomes possible evidence, and a plan should be in place to deal with such data before litigation arises.

In its report on new Rule changes, the Judicial Conference noted three specific characteristics unique to ESI:

• The volume of ESI vastly overshadows hard copy documents. Many computer systems store information in “terabytes,” each of which represents the equivalent of 500 million typewritten pages of plain text.
• Unlike paper, computer information is dynamic. Merely turning a computer on and off can change the information, sometimes without the operator even knowing it.
• Some ESI can be incomprehensible when separated from the system that created it.

These characteristics of ESI mean that well established, standard practices followed by many companies for the past 40 years in responding to a federal lawsuit (including engaging in discovery) are no longer adequate. A failure to appreciate the scope of the obligation will greatly increase the cost of litigation, and in some situations result in problems that directly impact the outcome of litigation. Attorneys and companies ignore these new Federal Rules at their peril.