The Federal Rules of Civil Procedure have been amended to address elects Newronic discovery, and these amendments will become effective on Dec 1. On the one hand, the new rules will have a significant impact on company processes for information management and preservation, but on the other hand, the world is not going to completely change as of Dec 2.
Much has been written about these amendments. In an attempt to cut through some of the noise, the following is a brief (over) simplification of the new rules and their practical impact.
Electronically Stored Information (“ESI”) is subject to production in lawsuits, which means it will be harder for lawyers to ignore technology and to act as if paper documents are the only form of information or communication. The way information is managed, from cradle to grave, impacts costs and risks of eDiscovery.
For the first time in the history of the Federal Rules of Civil Procedure, the word “preserving” appears. This relates to a party’s obligation to identify potentially relevant materials, as soon as the party is on notice of a new case (a "triggering event"), and to preserve or hold those materials so that they are available for subsequent production to the other side in the case. This is a significant records and information management challenge since each new case will require a company to find the content relevant to that case and preserve it for the life of the case (and this preservation obligation continues even after the normal retention period of the information has expired). Indeed, given the velocity of information together with the fact that, at the beginning of a case, it is often unclear what should be preserved, the ability to achieve perfect preservation is impossible for most large enterprises. The key is to create a repeatable process that allows the enterprise to demonstrate after the fact that it made good faith efforts to preserve what it reasonably believed to be relevant.
In every federal case, there will be an early “meet and confer” where each side’s lawyers will be forced to sit down and discuss the scope of discovery, including the sources of ESI, the scope of information preservation obligations (including “litigation holds”) and the formats in which information may be produced. There may well be the need to have IT experts at these meetings (since the lawyers will typically be “over their skis” when it comes to the technology). These sessions will drive (i) greater transparency and less of the uncertainty that in the past cause lawyers to "save everything" lest they destroy the wrong thing, but also (ii) more disputes over the scope and form of discovery, and (iii) potentially greater costs associated with having to get outside attorneys up to speed on the details of how the client (enterprise) manages its information. The latter point will likely cause organizations who face ongoing litigation to prepare some of that collateral (including in the form of “source maps”) themselves so they don’t have to pay their lawyers, in every new case, to learn about how their ESI is managed.
There is a need to understand the “sources” of ESI - where does your company’s information sit, how is it managed, who has control over it, how easy or difficult is it to access, and what are the normal retention and disposition policies.
There is less obligation to produce “inaccessible” content (versus "accessible" content), but you still may have to preserve/hold inaccessible content (which can be just as burdensome). There will likely be a lot of litigation over what is and is not accessible.
There is a “safe harbor” for good faith inadvertent destruction of content, but this is limited and this risk is likely best addressed through a good records and information management program, a reasonable and defensible preservation process, as well as with transparency (e.g., tell the other side you plan to continue to overwrite backup tapes and then take it up with the judge if there’s a disagreement).
There will be some protection for inadvertent waiver of attorney client privileged materials. On the flip side, the sheer volumes of materials make waivers more likely, and generally, the transparency that is driven by both the current trends in compliance and in the ways that information is managed means that the assault on the attorney client privilege will continue.
The content of this blog, and the opinions in it, are my own, and they do not constitute legal advice.
-- Andrew Cohen
