RESEARCH TRIANGLE PARK, N.C. - Over the last week or so there have been a number of articles about new rules related to litigation, portending that there could be punishments for undertaking routine computer backups or destroying legacy data from obsolete systems. Don’t panic!
Many of these articles are either misinformed or taking a broad brush to a complex and yet untested amendment to the Federal Rules of Civil Procedure, the rules under which parties to a lawsuit in federal court (only) request and receive documents and other information in the possession the opposing party.
To be clear, these rules are for litigation and do not apply to actions taken in normal, every day business when there is no litigation pending or threatened.
It is, however, important to understand what will happen with respect to your electronically stored information or “ESI” if litigation occurs, as this may determine how you want to maintain and retain information.
At the outset it is necessary to recognize that there are many courts. The United States District Courts, Courts of Appeal and Supreme Court are the courts to which these rules apply. Other courts in North Carolina or other states have different rules that may or may not be similar. Over time, the rules tend to coalesce but they are rarely wholly identical. When a lawsuit is filed the parties engage is what is called “discovery,” which is the process of each party obtaining information, including documents, from the other party.
From the inception of the rules in the 1930s until relatively recently, documents meant things written on pieces of paper. With most information now stored electronically, however, the definition of documents as only tangible objects became obsolete and there has been a struggle to determine exactly what is within the scope of discovery. With the amendment to the rules effective on Dec. 1, 2006, we now have at least a partial answer.
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By Linda Markus