The Brill Files: New FRCP Rules: What You Don’t Know Could Hurt You And Your Company

In the past few months, many articles have been written on the e-discovery changes to the Federal Rules of Civil Procedure (“FRCP”). While most of these have been on the mark, others have told only part of the story or left readers with inaccurate or incomplete information.

For example, depending on what you read, you may believe either or both of the following statements:

- The courts now require that your company maintain a copy of every e-mail message, document, spreadsheet and file an employee creates, sends or receives.

- When e-discovery occurs, you create a copy of the data and ship it off to the parties (or counsel for the parties) on the other side of the case, and they do the same.

As it turns out, neither of these statements are true. As IT professionals, you need to understand the implications associated with the new FRCP.

Keep Everything, and Keep It Forever?
Currently, there is no law requiring a company to maintain every e-mail, document, spreadsheet, database and file ever created or received. Under the new FRCP, however, you are obligated to take steps to safeguard information directly relating to an actual lawsuit or one that is reasonably likely to occur. This includes preserving relevant e-mails from automatic destruction or backup tapes with relevant data from being recycled. If you keep data beyond what is required by a lawsuit or impending suit, understand this: It is very likely that it will be discoverable.

In addition, it is important to understand that notice or reasonable anticipation of litigation warrants a litigation hold. Once a hold is in place, you are required to actively monitor suspension measures to ensure relevant data is not destroyed. If the “hold” is altered (or enacted) at some point, these business processes should always be crafted in conjunction with counsel, and once announced, should be followed and audited to be sure they are working as intended.

Is E-Discovery Really Just File Exchange?
The actual process by which e-discovery works can be fairly involved and requires specialized skills and knowledge to protect your company’s interests. For example, e-discovery should be reasonably limited to information related to the matter of the lawsuit. The opposing party could ask for all e-mails sent and received by your company during 2004 and 2005, but your counsel would be the first to tell you that such a request is excessive and needs to be narrowed to include only information relevant to the suit.

Even when a request is well crafted to limit discovery to matters related to the subject of the suit, you should also know that not everything gets turned over to the opposing party. For example, there may be correspondence that is deemed to be privileged attorney-client communications. When this is the case, it is important to remove or redact the specific privileged matter. In digital form, redaction is more complex and can require specialized tools, some of which are available in e-discovery software packages and services. For every redaction, counsel must prepare a "privilege log" explaining to the court why the redaction was made, so the judge can rule on the appropriateness of the cuts if a question arises.

Does Safe Harbor Mean ‘No Harm, No Foul’?
The new FRCP contains "safe harbor" protections to avoid penalizing honest mistakes but this provision has yet to be tested. The rules strengthen the role of counsel in telling a company’s IT group what is required of it under e-discovery. If an attorney instructs an IT group to halt destruction of e-mails or other documents, the company cannot hide behind defenses of “we were too busy.” The court may sanction such behavior. Consequently, assumptions that the safe harbor provision is all the protection you need if you ignore counsel’s instructions could prove to be a costly mistake.

Conclusion
There is a lot more to e-discovery than meets the eye. So, at the end of the day, do not underestimate their importance or the potential disasters that can result from keeping too much or too little potential evidence in your systems.

As an IT professional, you play the dual role of first responder and gatekeeper, ensuring that proper protocols are in place and followed. Staying up to speed on the changes to the laws and technology relating to e-discovery will certainly help you and your company retain the strategic edge when litigation ensues.

To learn more about electronic discovery visit www.krollontrack.com.

*** Written by Alan Brill. The Brill Files reflects his work in the field with clients who have encountered some not-so-pleasant events and what was done to remedy the situation. With more than 25 years of consulting experience, Mr. Brill has assisted organizations with a wide range of technology security issues and is an internationally recognized speaker and instructor. ***