On December 1, 2006, several amendments to the Federal Rules of Civil Procedure (“Federal Rules”) become effective.  Changes to Federal Rules 16, 26, 33, 34, 37, and 45 are specifically directed at the conduct of discovery of “electronically stored information.”  Key changes to the Federal Rules include placing a substantial burden on a party to preserve all potentially discoverable electronic information once litigation is reasonably anticipated and requiring early attention to electronically stored information issues in discovery conferences and scheduling orders.

The new Federal Rules place a heightened emphasis on understanding the operation of a company’s electronic information systems.  It is imperative that employers know how to prevent the loss of potentially relevant evidence because once a company reasonably anticipates litigation or is actually sued, it must suspend its routine document destruction process and establish a “litigation hold” to ensure the preservation of potential evidence.  Counsel, in-house or outside, must oversee compliance with the litigation hold and actively monitor the employer’s efforts to retain and produce relevant information. 
 Examples of actions appropriate at this juncture include:

  • Ensuring a “litigation hold” directive is issued promptly, is of proper scope to include information from each potential “key player” and data source, and is transmitted to the appropriate individuals;
  • Forming a team to address electronic discovery issues, including a senior manager or executive, human resources, information technology (IT), and legal, which meets regularly and maintains formal minutes;
  • Meeting with the appropriate IT personnel and client management to determine the scope of the potentially relevant electronically stored information, specifics of preserving potential evidence, and implementation of specific plans and actions;
  • Organizing how electronically stored information should be preserved and who is the final authority on preservation issues;
  • Gathering information needed to quickly respond to information preservation letters and prepare for initial discovery planning discussions;
  • During information preservation and production negotiations, consulting frequently with IT personnel to identify what is possible and what is not possible to do with the client’s specific electronic information system;
  • Documenting all efforts to identify responsive information keeping in mind the potential need for an affidavit(s) to demonstrate the good faith efforts undertaken should discovery issues arise;
  • Preparing to provide proof of the cost of accessing and recovering electronically stored information that is not directly accessible (such as backup, legacy, and residual data), and arguments as to why such effort is unreasonable under the circumstances;
  • Anticipating potential problems such as retired hardware, obsolete software, personal storage devices, and physical locations where storage devices may be “packratted” away; and
  • Reissuing the litigation hold directive and associated information periodically to ensure continued awareness of the requirements.

It is unlikely that an employer of any size can reasonably expect to fully comply with the new Federal Rules for preserving electronically stored information without some fundamental preparations to do so before litigation arises.  Ogletree Deakins encourages all of its clients to prepare as fully as possible in advance for meeting their duty to preserve electronically stored information consistent with the likelihood of future litigation, cost of preparations, and the risk of sanctions for noncompliance.  Our attorneys are ready to work with clients to:

  • Review the existing document retention policies for all electronically stored information (not just email or backup tapes);
  • Review or develop a detailed protocol for preserving electronically stored information in the event of a claim, including such activities as suspending recycling backup media, collection of portable media, and implementation of system activities to prevent automatic data modification;
  • Develop processes to determine what is retained and how; and
  • Review “litigation hold” letters with management and in-house counsel to determine if litigation is “reasonably anticipated” and a “litigation hold” is appropriate.

Additional Information

A more detailed discussion of the new Federal Rules can be found on our website and will be included as a special supplement to the next issue of The Employment Law Authority.  If you have any questions regarding the new Federal Rules or how the changes may affect your current or future litigation strategy, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at clientservices@ogletreedeakins.com.

Note: This article was published in the November 8, 2006 issue of the National eAuthority.

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