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This article was originally published by the Wisconsin Chapter of the Associated Builders and Contractors in its June 2007 Merit Shop Talk newsletter.

New Federal Rules on Electronically Stored Information

By Jim Pease

It is normal for business people to become involved, from time to time, in some form of court or administrative litigation.  Anyone who is, or may become, involved in litigation should be aware that on December 1, 2007 the rules relating to the discovery of electronically stored information in federal litigation will change in ways that could have a significant impact on you.

Most business people use computers, cell phones, fax machines, pagers, BlackBerry-type personal data assistants and other electronic devices that electronically store information, and have other electronic devices for backing up that information.  The information stored on those electronic devices may be relevant to litigation in which you are or may become involved.  I’m not just talking about the text of documents or the contents of photos.  Other information, such as technical data, known as metadata, which records when a computer prepared a document or when the document was modified, may also be relevant to the litigation.

But, there is a big problem with electronically stored information.  It is often being constantly changed or deleted as that device in which it is stored continues to operate.  For example, every time a computer is turned on, the metadata is changed.  Another example is that most folks recycle their backup tapes after a certain period of time, writing over the data previously stored on the tape.

An additional problem is that the information may be difficult, and extremely time consuming, to retrieve and evaluate.  Examples include deleted information or information related to software programs that are no longer used.  And, the information may be in a format that isn’t effectively searchable and doesn’t permit effective access to the information.  There was a need for rules to deal with these problems in litigation where electronic stored information is increasingly becoming crucial to the outcome of the litigation.

The United States Supreme Court, with the approval of Congress, has amended the Federal Rules of Civil Procedure to spell out the obligations of parties involved in litigation to preserve, protect and produce electronically stored information, and their right to discover the other party’s electronically stored information.  Effective December 1, 2007, those amendments require an assessment at the outset of each lawsuit of what electronically stored information might be relevant to the lawsuit, how that information is to be preserved, how it will be produced for review by the other parties in the litigation, and whether a party should be excused from having to produce information because it isn’t reasonably accessible.

It is likely that determining what electronically stored information is available and how it can be preserved and produced will require an Information Technology professional to review a business’ electronic information storage devices, practices and policies to determine what action can and must be taken.  This may require that computers or other devices not be operated, i.e., be unplugged and “frozen” until measures are taken to prevent stored data from being altered.  It may also require that information retention policies be altered and that automatic deletion or recycling programs be turned off or suspended.

If the required steps aren’t taken, the court could decide to assume that destroyed relevant information would have hurt the case of the party who failed to prevent its destruction.  The court could also order that party to pay for the extremely expensive process of having forensic IT technicians restore the data to the extent that is possible.

The adoption of the amendments to the rules on discovery of electronically stored information is likely to cause litigators on both sides of the case vastly increase the number of requests for electronically stored information.  It would seem prudent to start now to work with IT professionals and legal counsel to develop a plan for addressing these issues when they arise.

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This page is intended to provide general information about various legal issues and developments.  It is not intended to be a complete list of all recent legal developments.  This page does not constitute legal advice and should not be relied upon in dealing with specific factual or legal matters.