E-Discovery Rules Not Such a Big Change, Lawyer Says

New court rules rarely concern anyone except lawyers, but the addition in December of new Federal Rules of Civil Procedure concerning electronic data made headlines.
The idea that businesses now need to preserve e-mails and even voice mails just in case they ever turn out to be evidence in a lawsuit was fairly astonishing. But Little Rock attorney Jamie Huffman Jones, who has led workshops on the growing field of "e-discovery," said the new requirements aren't as earth-shaking as they may sound.
"In my opinion, what they have tried to do is make all parties aware of their responsibilities," said Jones, an associate at Friday Eldredge & Clark in Little Rock.
The new rules establish a procedure for the courts and the parties to discuss electronically stored information (ESI) before the discovery process begins, she said. And they make it clear that ESI is just as "discoverable" as paper documents.
As with hard information, only electronic data that is relevant to the case is discoverable, and ESI that is very hard to get to — back-up tapes or obsolete formats — is only discoverable when the requesting party can show good cause, Jones said.
"If I'm the CEO of a corporation, I need to know what information we have, where it's stored, what my IT guys are doing to protect it, and how do I get it when I need it," she said. "This is definitely something that clients should be talking with their attorneys about, and we are talking to our clients."
A business can't be sanctioned if it loses electronic information through routine business operations, Jones said, but businesses do need to establish standard file-retention policies and litigation plans because deliberately destroying information that is obviously pertinent to known litigation is still against the rules.
And destroying ESI is harder than it sounds.
"I always like to say delete does not mean delete," Jones said. She compares deleting a computer file or an e-mail to pulling a card out of a library's card catalog.
"Just because I pull the card out of the card catalog does not mean that the book isn't on the shelf.... You've just lost that easy access to where it is," she said.
The courts aren't making much distinction between paper and electronic documents, but there are important differences to keep in mind.
"Paper is hard to change and easy to destroy. ESI is easy to change and hard to destroy," Jones said.