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Amendments to the Federal Rules of Civil Procedure regarding E-Discovery - Part 3

Novell Cool Solutions: Feature
By Benjamin Wright

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Posted: 6 Feb 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.

Amendments to the Federal Rules of Civil Procedure regarding E-Discovery: What you need to know - Part 3

Readily-Accessible and Discoverable Electronic Records

Recognizing how vast corporate information systems can be, the drafters of the rule amendments wanted to curb the search for records in areas that are unlikely to produce useful evidence at reasonable cost. So they drew a distinction between records that are readily-accessible and those that are not.

Under revised Rule 26(b)(2) relevant e-records that are readily-accessible are discoverable, and records that are not readily-accessible are presumed not to be discoverable. But the party seeking records can overcome the presumption of non-discoverability. Among the ways to overcome the presumption would be to produce circumstantial evidence that the records are relevant or that they are in fact accessible without undue expense.

Does this amended rule make any difference to a business manager who is setting a record retention policy before litigation has started? I think not. The amendment does not reduce the general incentives to retain records and be able search them if litigation breaks out. It is impractical for a manager to know in advance which records might one day be considered "readily-accessible" and which not. Further, even those records that are not readily-accessible are still possible to be discovered.

The existence of the revised rule does raise a common topic of e-mail retention policy. Some observers question whether courts consider data in network backup tapes to be fair game for discovery. They argue that anything in network backup is not readily accessible.

The policy of many enterprises is to destroy e-mail relatively quickly, such as 180 days after creation, or upon the termination of an employee. Commonly, the goal for this policy is to reduce the quantity of records the enterprise is required to sift through in the event of a discovery demand in litigation. Attainment of the goal, however, can be undermined if the enterprise keeps network backup data that contains a lot of e-mail.

The enterprise may claim that it deletes e-mail in 180 days and thus does not possess it for legal purposes. But if some of the deleted e-mail is retained in backup, it may still be discoverable, and Rule 26(b)(2) would not necessarily shield it from discovery. Searching through network backup can be a very tedious, distracting and expensive process. An enterprise forced to search for e-mail in network backup will wish it had retained its original production e-mail records.

Investment bank WestLB learned this lesson in a lawsuit alleging discrimination against a former female employee. See the article by Deborah Gage and Kim S. Nash titled "E-Mail Retention: The High Cost of Digging Up Data" in Baseline Magazine, Aug. 2, 2006

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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