E-Discovery laws – Civil Litigation

If you think you may be involved in civil litigation, be sure you are complying with the rules regarding preservation of electronic records.

In 2006, the U.S. Supreme Court’s amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant message chats as likely records to be archived and produced when relevant. At least 41 United States District Courts now require compliance with special local rules regarding e-discovery.

With electronic message archiving in place for both email and IM it becomes a fairly simple task to retrieve any email or IM chat that might be used in e-discovery. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.

Also important to complying with discovery of electronic records is the requirement that records be produced in a timely manner. The formalized changes to the Federal Rules of Civil Procedure in December 2006 and in 2007 effectively forced civil litigants into a forced compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks litigants face as a result of improper management of ESI include spoliation of evidence, adverse inference, summary judgement, and sanctions.

A new California state law, known as the Electronic Discovery Act, specifically defines what constitutes electronically stored information and establishes procedures for parties to obtain discovery of electronic information. The new law also permits discovery of electronic data by means of “testing, or sampling.” In addition, the Act specifically permits a party to subpoena electronic information from third parties.

The new law also shields parties and their attorneys from sanctions for failing to provide electronic information that has been lost, damaged, altered, or overwritten as a result of “routine” and “good faith” use of a computer system. However, this provision does not alter a party’s obligation to preserve discoverable evidence once the party becomes aware of impending litigation.