Emerging issues in electronic record-keeping and discovery

As our dependence on information technology in all sectors of life has grown, the type of information stored in electronic form, whether Word documents, Excel spreadsheets and e-mails — whether on servers, PDAs or even cell phones — has increased tremendously. This information often remains stored long after it has been deleted from the device on which it was originally created.

Effective Dec. 1, 2006, new amendments to the Federal Rules of Civil Procedure — which govern litigation in the federal courts — include rules governing the production (and consequently the retention) of electronic information. In addition to changing how litigants deal with e-discovery issues, these changes will significantly impact how corporations and organizations should organize, manage and monitor electronic information and systems at all times, as well as in the face of actual or anticipated litigation.

Electronic evidence is unique in that it can be inadvertently destroyed or altered through just a couple of strokes on a keyboard — with devastating consequences. Several recent cases confirm that the duty to preserve information potentially relevant to a claim arises when parties (and/or their attorneys) reasonably anticipate litigation.Failure to preserve such information can result in monetary sanctions, or, worse, a finding of spoliation of evidence. A finding of spoliation can result in a jury instruction that evidence was destroyed and the jury may assume the evidence was harmful to the destroying party’s case.

Although the new civil procedure rules contain a “safe harbor” for inadvertent destruction of information that is not in bad faith, the safe harbor is a narrow one at best. Once litigation has commenced, parties will now have to disclose potential sources of electronic information and agree upon guidelines to govern how they will deal with e-discovery during the litigation, including the format of production and any cost-sharing or cost-shifting agreements, if warranted.

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Source: NH.com
By Daniel E. Will