New federal court rules effective Dec. 1 make it more important for businesses to archive and be able to locate electronically generated information before being forced to by a lawsuit.
"If they want to control discovery, they need to get their arms around the data that they already have," explained B. Jay Yelton III, a discovery specialist lawyer in Miller Canfield's Kalamazoo office.
The new rules require that electronic-information preservation and retrieval is discussed early in the litigation process, he said. That lessens the likelihood that a company would be penalized for being unprepared or appearing to conceal evidence, he said.
Discovery -- obtaining information from the parties prior to a trial -- commonly creates the lion's share of the cost in most lawsuits, Yelton pointed out. Preparing for electronic search and retrieval ahead of time, off the attorney's clock, can save costs later.
New amendments to the Federal Rules of Civil Procedure make the availability of electronic records -- transactions, communications, even voice mail -- among the first issues to be discussed in any federal lawsuit. Parties have between 60 and 90 days to confer on a discovery plan after a complaint is filed.
Limits on the scope of such discovery are part of those amendments, however, taking into account the cost and burden of providing such records. There also is some language in the amendments discouraging a court from imposing sanctions on a party for not being able to provide information deleted as part of its routine electronic information management policy.
That so-called safe harbor provision is far from watertight, Yelton cautioned, and courts still have authority to punish those who can't produce critical evidence.
To view the entire article, click here
By: Mark Fellows