For e-discovery, the times, they are a-changin'

Amendments to the Federal Rules of Civil Procedure (FRCP) that take effect on Dec. 1 are supposed to help reduce litigation costs. The paradox is that electronic discovery costs may increase, especially with respect to work that must be performed within the first 120 days after a lawsuit has commenced.

The purpose of these new rules is to provide early structure, uniformity and predictability. But the reality is that right from the get-go, the parties in a lawsuit will need to start evaluating with their IT teams and outside counsel where they stand in terms of their own electronic data.

Easier said than done. Hunting for the relevant electronic information in a lawsuit can take time. Data may be located live on the network or on various servers. It may be in hard drives, laptops, PDAs--or on backup tapes.

Figuring out the logistics helps determine what electronic discovery to demand from the other side in a case. Plainly, a party should not expect to demand a category of electronic discovery that it's not willing to produce.

Keep in mind that electronic discovery is expensive. Cases often get resolved before the parties and counsel have invested time and effort--not to mention the expense--of carrying out electronic discovery search, retrieval and production procedures. By forcing these processes early on in a case--at least in federal courts, by way of the new FRCP amendments--opposing sides in a legal dispute will have no choice but to move forward with electronic discovery right from the start.

What's more, the new rules will broaden the definition of electronic items that may be subject to discovery from "documents" or "data compilations" to include all electronically stored information.

In the past, parties to a lawsuit might have tried to shield certain types of electronic information from discovery. But when the new rules take effect, the other side conceivably will be able to demand everything from standard Word documents and e-mails to voicemail messages, instant messages, blogs, backup tapes and database files.

Of course, they still can argue that the burden of any particular demand outweighs the potential probative value of the electronic information sought. For example, demanding parties cannot automatically expect that responding parties will restore and produce backup tapes. Responding parties can assert that these tapes are not reasonably accessible and that their production would cause undue burden. They can also claim that the value of the tapes pales in comparison to the recovery and production efforts that would be required.

Given that the provision of electronic discovery is burdensome and could be extremely costly if every bit of electronic data were reviewed very carefully prior to production, the new rules will allow parties to retrieve inadvertently produced privileged information. Because it is not difficult to mistakenly produce privileged or proprietary electronic information, some very sensitive trade secret information should be designated as "highly confidential" for the eyes of outside counsel only.

There has been a lot of worry about potential spoliation (destruction of evidence) arguments when certain electronic information has not been saved. Judges now will have the discretion to disallow sanctions when a party has lost electronic information as a result of the regular good-faith running of an electronic information system. Still, parties must have in place solid data retention policies and practices covering information that could be appropriate for electronic discovery.

None of the forthcoming requirements is easy or cheap. But increasingly, we will need to deal with the burdens of the electronic age and not just its benefits.