Discovery Of Electronically Stored Information Under
The New Federal Rules Of Civil Procedure

Electronic data and e-mail management presents a constant battle. If not properly managed, storage capacity can be quickly exceeded, information can be lost and/or confidentiality can be compromised. Public bodies must also maintain this data in a way that will enable them to comply with public records/ Freedom of Information Act requests.

Every business, agency and individual that receives, sends, creates or stores data electronically should have established policies and procedures for the creation, use, receipt, storage and retrieval of electronic data. Software programs such as “Word” automatically store “hidden” information (known as “meta data”) about a document’s history, management and revisions (such as on whose computer it was drafted, when it was revised, what language was added and deleted, and editorial comments). This information can remain embedded in the document even though nothing appears on the screen of the drafter. Therefore, electronic data management policies should expressly deal with the creation, retention and transmittal of meta data and guard against its inadvertent release to third parties.

Policies and procedures relating to electronic data must now also take into account the newly adopted Federal Rules of Civil Procedure, which require the retention and production of electronic data and information such as e-mail, instant messages and other electronically stored information. These rules provide that once an entity is aware of a potential federal claim or once federal litigation filed against it, the entity must take reasonable steps to preserve the electronically stored information.

The rules went into effect December 1, 2006 and require a potential defendant to “flag” and retain all electronic mail, instant messages and all other electronic documentation, including data stored on personal information devices (such as Blackberries and Treos), cell phones, copiers and similar devices relevant to the case or controversy.

If a request is made by the opposing party to produce the information, the defendant will be required to comply with the request, subject to recognized exceptions or limitations. For example, electronic information is protected by the same attorney-client privilege as “hard” copies. While this electronic data would enjoy the same protection from disclosure, it also gives rise to the same obligations to assert the privilege (e.g., generating a privilege log and maintaining privileged material separately from non-privileged material). Other long-recognized limitations – that the material is not relevant or that the need or probative value of it outweighs the cost or burden of production – may also apply. In those cases where the burden and cost of obtaining this information makes its discovery unreasonable, the Court may determine that the information is not accessible, or it may impose certain conditions (such as cost-sharing for data retrieval or examination of a representative sample of data) before requiring the retrieval of all electronic information.

Types of matters that usually will be filed in Federal Court include employee matters, civil rights violations and First Amendment actions. The original form of the electronically stored information must be kept intact. In order to avoid disputes over what electronic information was retained and what was deleted, the otherwise routine deletion of electronically stored information pertaining to the matter should cease immediately to ensure relevant information is preserve. Backing up data and ensuring data tapes do not get overwritten, as well as broadcasting a prohibition against removing electronic information related to the case or controversy to all those employees or officials who may have relevant information is also suggested.

The Federal Court has not yet addressed whether the production of meta data or the so-called “draft” language which may be embedded in a final document, is to be produced. Although the new federal rules do not provide sanctions for a party’s failure to provide electronically stored information lost as a result of the routine, “good-faith” operation of an electronic information system, other adjustments could be imposed on the party for allowing the data to be “lost.” We expect the definition of what constitutes “good faith” and the disclosure and use of meta data to be the subject of discovery disputes as well as separate litigation. We will keep you posted on any future developments as they occur.

THE FOREGOING IS MERELY A PARTIAL SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL OPINION.