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December 5, 2006

New Federal Rules: E-discovery

Last Friday the Federal Rules of Civil Procedure were amended to explicitly cover e-discovery.  The world has moved into the digital age where document management systems archive paper documents electronically, or more likely, documents created and used digitally with paper the afterthought.  But that's not the only focus for the rule change.  Committee comments point to the efficiencies of searching electronic archives while balancing the costs and reasonableness of producing less accessible documents.  That balance, ultimately, will get sorted out through motions to compel discovery.

The rules anticipate that documents relevant to anticipated litigation will be preserved.  That's fine for document databases.  Potential electronic documents also include email and IM transcripts.  It's not that these can't be preserved.  Corporations were a lot more lax in organizing information that may ultimately reside on the employee machine rather than on company servers.  Moreover, the distinction between corporate communications gets a bit more squishy with free email and IM accounts available from a variety of vendors.  Some employees are just as likely to handle some transactions outside of corporate channels for reasons ranging from ease of use to ease of evading detection.  The new rules are more likely going to impact how businesses and other entities communicate in order to facilitate preservation and access compared to actually searching and producing documents.  This may mean a greater wall between personal and business communication while at the office.  It depends on how paranoid a company may be over this issue. 

Expect HR and IT to collide over what policies to put in place and the onerousness of implementing them.  And management, or course, will agonize over the cost.  But that's what consultants are for, to work out these details. 

The text of the federal rule amendments with committee comments is here.  Excerpts from the Judicial Conference Report and the Report of the Advisory Committee on Civil Rules is available through links on this page.

December 5, 2006 | Permalink


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