Electronic Discovery Law

The United States Supreme Court approved proposed amendments to the Federal Rules of Civil Procedure under what is known as “e-discovery.” E-discovery includes information that is electronically stored. As a result of these amendments, businesses can be affected in major ways. These amendments will likely give companies a new prospective on when and how they choose to retain their company information that is considered electronic communication. The amendments address the discovery as well as the preservation of evidence issues relating to electronic data and data storage. Businesses should now start planning how they want to address these new rules.

What is Discoverable?

During litigation, the parties usually undergo some form of discovery. Much of the discovery process involves the parties attempting to gain as much documents and additional information from the other side as possible. It is important to understand that the parties can obtain discovery pertaining to any matter that is not privileged and which is relevant to the claims or defenses of any party. This includes electronic communication and data. Thus, while a company may not necessarily anticipate litigation in its near future, it should be well aware of these rules and have an action plan in place so that it is prepared should it be involved in any type of litigation.

Business should have a process in place where they archive data. For instance, it may want to keep back-up tapes of its electronic data. One factor to consider is to have special folders and key machines that maintain the company's electronic information.

In addition to these precautions, business myst be aware of the fact that even though computer files or emails may already be deleted, these files can be discoverable information in a case. Think of it like a piece of paper thrown out in the trash. This piece of paper can be a discoverable document. Thus, an email message is just as discoverable as a letter that has been thrown out. all a court has to find is that this letter or email is relevant to the matter at hand for it to be discoverable information.

The amendment also allows a party to simply identify electronic data that may be inaccessible. Thus, a party may not initially need to produce this information but must still identify it. A court may require a party to produce this information under certain conditions if the requesting party successfully persuades the court that the information should still be produced.

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