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NEW FEDERAL RULES CONCERNING
ELECTRONIC DATA
Another
in the Smart StartSM Series.
Companies doing business within the United States and its
territories will need to do a better job of keeping track of
where they store e-mails, computer-aided drawings, instant
messages and other forms of electronic documents as a result of
changes to the federal rules concerning discovery that took
effect today.
The U.S. Supreme Court’s administrative arm amended the Federal
Rules of Civil Procedure to require parties involved in federal
litigation to produce “electronically stored information” to the
opposing party much earlier in the litigation than before in an
attempt to reduce disputes over discovery. Discovery is a phase
in litigation where the parties disclose information to the
other side that could be used as evidence at a trial.
The new rules make it more important for businesses to know what
information they have stored electronically, where it is stored,
and how to recover or restore the data. This knowledge is
critical because one new provision requires lawyers to provide
information about where their client’s data are stored and how
accessible it is early in the litigation. Under the new rules,
an employee or contractor who fails to keep inventory of data,
routinely copies over data, or obliterates data after litigation
has commenced could be committing “electronic shredding” of
evidence. Companies are still permitted to routinely purge
their archives if data are not relevant to the case in
litigation (or expected to litigate), though specific business
such as financial service providers remain governed by other
data-retention rules.
The new rules do not alter how data should be retained. Rather,
the rules require that measures be implemented to better
inventory data stored on a system so that it can be more easily
found and produced. The new rules also provide better guidance
on how electronic evidence is to be handled in federal
litigation, including guidelines on how companies can seek
exemptions from providing data that is not “reasonably
accessible.”
Click
here to see the specific rules. For more information on how
the new amendments to the Federal Rules of Civil Procedure on
discovery could impact your business, feel free to contact Barry
Kane by email at
bkane@kaneplc.com, or by telephone by calling 616.725.5905.
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