Electronic data has long been a part of the body of evidence produced in court trials, with many a forgotten e-mail resurfacing to haunt its sender.
The trouble is, there has never been a set of rules aimed at ensuring a uniform, predictable structure for so-called e-discovery. After about five years of debate, a set of long-discussed changes to procedural rules for civil cases, set to take effect on Friday, is designed to fill that void and replace a patchwork of existing state and local codes.
The new rules will effectively require U.S. companies to keep close tabs on all e-mails, instant messages and other "electronically stored information" created by their employees. That means they'll potentially have to come up with a plan to track what lives on their networks, computers, personal digital assistants, backup tapes, hard drives, and other devices, so that they can readily preserve or produce data, if need be.
Before the rules kicked in, not all court systems required parties to disclose early on in litigation what electronic evidence they planned to present during discovery. The amended rules require companies to schedule an early conference to discuss what electronic data they plan to use in supporting their claims or defenses, along with the names and phone numbers of people who are likely to have "discoverable" information.
Recognizing the bane of computer crashes or unsavvy users, the rules include a "safe harbor" for information that may have been inadvertently lost. As long as the data holder was practicing "routine, good-faith operation of an electronic information system," and "absent exceptional circumstances," a judge would not be allowed to impose sanctions. The new rules also outline what do about getting an exemption when data is "not reasonably accessible."
The amendments were aimed at reducing litigation costs, but some worry they may actually create new expenses. On the eve of the rules taking effect, a number of companies were already issuing press releases peddling software designed to help firms manage terabytes of information that could be subject to the new rules.
For the more legally inclined, U.S. District Judge Lee Rosenthal has more on the rules at the Yale Law Journal Pocket Part.