New rules, which took effect on December 1, 2006, require U.S. companies to keep better track of their employees’ e-mails, instant messages and other electronic documents in the event the companies are sued. These new rules are part of amendments to federal guidelines governing civil litigation and were approved by the Supreme Court in April 2006 after a five-year review.
Under the new rules, a company that is party to federal litigation must produce electronically stored information as part of discovery. This is the process by which both sides share evidence before a trial. Federal and state courts have already been requiring such evidence in individual cases. The new rules now make the production of such evidence mandatory for companies involved in federal lawsuits. Furthermore, any information technology employee who copies over a backup computer tape once a lawsuit has been filed could be accused of committing “virtual shredding.” Companies are still permitted to purge databases if the information they contain isn’t relevant to pending cases or cases the company anticipates being a party to in the future. However, sectors, such as financial services, remain subject to the data-retention rules they have always followed. In-house attorneys and IT staff will have to work together to ensure routine erasing of backup data doesn’t present legal issues. Lawyers must also know where company data is stored.
Many large companies are unaware of the data they have on hand, which makes them unprepared if sued. Because they lack a real knowledge of what data they house and where it is located, these companies are more likely to settle lawsuits to avoid the costs associated with electronic discovery. Better organization of the data will lower these costs and enable companies to avoid settling.
On the other hand, large companies are likely to face higher costs from organizing their data. The new rules make it necessary for companies to know about items more difficult to track, like work-related digital photos on employee cell phones and information on removable memory cards. As a result, firms that help businesses track and search their electronic data are experiencing a huge surge in new business.
Most legal experts agree that it isn’t a question of companies changing how they keep electronic files, but rather a question of having a more complete knowledge of where documents are stored. The new rules also provide more direction as to how electronic evidence is to be handled in federal litigation. This includes guidelines on how companies can be exempted from providing data that isn’t reasonably accessible, which could lessen the burden of electronic discovery.