Any company can be at risk for being sued in a civil case and with today’s advanced use of computers and networks, rounding up relevant evidence to support the case will likely be necessary. The process of finding, preserving and presenting electronically stored information is called e-Discovery.
1) The Rules for e-Discovery are set by the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (FRCP) were originally written in 1938 and have been amended several times since then. In 2005 the FRCP was amended to add and change rules relating to discovery. These rules can be found on the US Courts site at: http://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf
These are the primary rules governing e-discovery:
- Rule 26 General Provisions Governing Discovery; Duty of Disclosure – This rule outlines the process for discovery including exemptions to the discovery process and a meeting between parties to discuss the organization of the process.
- Rule 34 - Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes – the main rule relating to ESI discovery.
- Rule 37 - Failure to Make Disclosures or Cooperate in Discovery; Sanctions – This rule states the court cannot sanction the responding party for failing to provide ESI that was lost as a result of routine computer operations.
2) eDiscovery Applies to Electronically Stored Information (ESI)
ESI includes any type of electronically stored information a company may have. This includes email, documents, sound files, chat and Instant Messaging, databases and even metadata within documents. Any ESI that may be relevant to the case will be considered for discovery.
3) Litigation Holds
Once your company is notified of the pending case, a Litigation Hold may be called for the preservation of relevant ESI. If you have a properly documented retention policy where ESI may be destroyed in an automated (or manual) fashion, a litigation hold may force you to alter your process to ensure relevant ESI is not destroyed or altered.
Be aware that if data is not destroyed during “normal” business operations and still exists when entering into litigation (for example a “one-time backup” or old email archive you forgot to delete), they will need to be retained. Destroying them after you are notified of pending litigation in hopes of “catching up” with your retention policy can be seen as you trying to destroy relevant evidence.