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Amendments to the Federal Rules of Civil Procedure regarding E-Discovery, Part 2

Novell Cool Solutions: Feature
By Benjamin Wright

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Posted: 30 Jan 2007

As of December 1, 2006, the Amendments to the Federal Rules of Civil Procedure made electronic records a standard part of litigation. The amendments show that enterprises have incentives to keep more complete e-mail archives and to retain those archives for longer periods of time. An enterprise that has destroyed its e-mail records prematurely, or that cannot account for the electronic records it does possess, stands to suffer more in a court today than might have been true some years ago. To review the first part: click here.

Amendments to Federal Rules of Civil Procedure regarding E-Discovery: What you need to know - Part II

Revelations about E-Records Early in Litigation

FRCP 26(a) has been amended to clarify that parties are obliged early in litigation to divulge the existence of and describe relevant electronic records. Further, parties are required under amended FRCP 16(b) to hold an early-stage conference that includes discussion of e-record issues and planning for discovery of e-records.

The significance of these two amendments is not that e-records are now deemed the subject of discovery. Courts have long recognized that electronic records must be turned over in discovery. Instead, the significance is that these amendments make e-records a prominent topic right upfront, as litigation is starting. What this means is that enterprise litigants will be expected quickly to have a handle on what e-records they possess, where they are, what format they are in, how accessible they are, how voluminous they are, what it will take and cost to compile them and so on.

Therefore, an enterprise will need to have more than just general knowledge of its information systems. It will need to know and be able to tell an opponent about the relevant records, the specific e-mails (out of the possibly billions housed in the firm's archives and backups) touching on the topic of the lawsuit. To satisfy this need, the enterprise is wise to have records that are reasonably organized and have capabilities for searching them without lengthy delay. Historically, most complex enterprises have not possessed well-organized, searchable e-mail archives, although better tools are coming to the market to help in this regard.

A corporate litigant that is unable, early in a lawsuit, to respond responsibly opens itself to the risk of sanctions from the court. The litigant that simply cannot declare the status of relevant records may appear to the court to be unfairly delaying the proceedings. And a litigant that makes early representations about its records that later prove to be inaccurate (possibly because its records are in disarray) may be deemed to have misled the other party. In either case, the court may fine the litigant or apply other sanctions that inure to the litigant's strategic disadvantage.

For example, in 3M v. Tomar Elec. the defendant lied on several occasions about the content of e-mails and about whether employees in his company possessed relevant e-mails. The court was displeased. It concluded the defendant failed to make a "reasonable inquiry into whether employees . . . had documents or information responsive to" his adversary's discovery request. Consequently, the court forced him to pay monetary compensation to the plaintiff and ordered that instructions be given to the jury that would place the defendant at a distinct disadvantage as the lawsuit progressed.

To be continued ...

About the Author

Benjamin Wright is a Dallas-based attorney and author of numerous publications on technology law, the most recent being a series of educational videos and study guides on best practices for managing email records.

Ben Wright recently released a series of educational videos on the best practices for e-mail record retention and compliance. For more information about how you can get this exclusive 4-hour DVD Kit, visit:

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