In a follow up to our previously issued Legal Alert, the December 1, 2006 effective date of the amendments to the Federal Rules of Civil Procedure relating to e-discovery is upon us.
In a follow up to our previously issued Legal Alert, the December 1, 2006 effective date of the amendments to the Federal Rules of Civil Procedure relating to e-discovery is upon us. These amendments should provide guidance to employers and their counsel regarding the retention and production of electronic information in litigation. The amendments address five areas: (a) the need to address electronic discovery in the initial meeting of the parties, including preservation of information, the form of production and privilege issues; (b) discovery of electronically stored information that is and is not reasonably accessible; (c) the assertion of privilege after production; (d) the application of Federal Rules of Civil Procedure 33 and 34 to electronically stored information; and (e) a limit on available sanctions under Federal Rule of Civil Procedure 37 for the loss of electronically stored information resulting from routine operation of computer systems.
The amendments may impact employers involved in federal litigation in several ways:
· The requirement that the parties address electronic discovery early in the litigation process means the employer and employment counsel must discuss these issues very soon after engagement. Employers need to identify whether there is electronic information relevant to the lawsuit, including e-mails, spreadsheets, and other information or documents stored in an electronic format.
· It may be necessary for counsel to consult with the employer's IT department to determine the location of electronic information and the format in which it is stored. The amended rules permit the party requesting electronic information to specify the format or formats in which it wants electronically stored information produced. If the requesting party does not specify a format, the rules direct the responding party to state the format it intends to use in the production. Thus, it is important for employment counsel to understand the format in which electronic information is stored and can be produced.
· The amended rules also instruct the parties to discuss the preservation of discoverable electronically stored information. Again, it will likely be necessary to consult with the employer's IT department to ensure electronically stored information is properly preserved. The comments to the rules note that the parties should pay particular attention to the balance between the competing needs to preserve relevant evidence and to continue routine operations critical to ongoing activities. Thus, it is important for counsel to understand the abilities and limitations of the employer's computer system and the ability to preserve information without limiting the employer's operating abilities.
· The rules have also been amended to provide that absent exceptional circumstances, a court may not impose sanctions on a party for failing to preserve electronically stored information lost as a result of routine, good-faith operation of an electronic information system.
· Rule 45, relating to the issuance of subpoenas, has been amended to apply to the discovery of electronically stored information. Thus, even those not party to the litigation may be required to produce electronically stored information.
If they have not done so already, employers must take steps now to avoid possible sanctions for loss of relevant information and to make electronic discovery less burdensome if they become involved in employment related litigation:
· Develop document retention and electronic communication policies that provide for a consistent process for deleting old e-mails and instant messages, consistent with any regulatory requirements for document retention, which can be halted in the event of litigation.
· Identify an individual in the IT department, preferably one high in the chain of command, who will be notified when discovery requests for electronic documents are received and who will be responsible for ensuring compliance with litigation hold instructions.
· Create a team of individuals, including those who are familiar with the company's computer technology, who will work together in responding to electronic discovery requests.
Employers' Bottom Line:
The implementation of the amended rules will likely focus the attention of courts and parties involved in litigation on discovery of electronic information. To ensure compliance with the amended rules, employers should have an electronic communications policy and a document retention policy in place before any litigation is commenced or threatened and should ensure that these policies are followed consistently. Existing case law along with the new rules herald a need for unprecedented cooperation between the parties to avoid preservation missteps.
The duty of preservation makes it important to ensure that there is a procedure in place for communicating litigation hold instructions and ensuring these instructions are followed. Ford & Harrison attorneys can provide assistance in complying with the amended rules, including reviewing policies and procedures and providing training to in-house counsel, IT managers, HR managers and others responsible for complying with discovery requests.
If you have any questions regarding the any of these issues, please contact Marion Walker, mfwalker@fordharrison.com, 205-244-5916, Kay Wolf, 407-418-2317, or Delaine Smith, dsmith@fordharrison.com, 901-291-1547, or the Ford & Harrison attorney with whom you usually work.