E-Discovery Amendments: Save Your Old Voice Mail

Save those voice mails. That’s the legal takeaway regarding new e-discovery amendments to the Federal Rules of Civil Procedure that will become law on December 1, 2006.

The amendments make significant changes to the rules of discovery with regard to electronically stored information (ESI), including e-mail and voice mail, as well as Word, PowerPoint and many other document types that corporations submit to courts during the discovery phase of the litigation process.

With the new rules, corporations may need to create new procedures for reviewing voice mail and other audio files for both compliance and litigation purposes. This is especially true in light of the growing adoption of Unified Messaging Systems and the new rules on e-discovery.

Rigorous Collection Processes

Discovery requests for voice mail and other audio files are nothing new, but such requests are bound to increase in the wake of the new amendments.

Most companies, though, have not yet begun to approach the need for policies and procedures to standardize management of electronically-stored information, let alone producing it for litigation discovery or governmental investigations, according to Kenneth N. Rashbaum, compliance attorney and partner at Sedgwick, Detert, Moran & Arnold LLP.

“Under the federal rules amendments, judges will be increasingly vigilant about production of all forms of electronically stored information, and companies should be proactive in processes for preserving and producing voice mail and other audio files,” Rashbaum told TechNewsWorld.

As the technology exists to store and retrieve voice mail and other audio files, companies must understand the breadth of the new requirements, Rashbaum said. Courts will be reticent about accepting excuses from companies that claim ignorance.

Delving Into the Law

As initially set forth, the rules make explicit what was already established under case law — that ESI is discoverable.

However, the new rules now require parties to address e-discovery issues in their initial disclosures as well, explained Anthony P. Schoenberg, commercial litigation attorney and partner with Farella Braun + Martel.

With early disclosure requirements, corporations litigating in federal court cannot afford to wait until they receive that first set of document requests before they start digging up potentially relevant ESI. They should look for ESI as soon as litigation is reasonably anticipated, he explained.

“Corporations should be aware that under the new rules, it is likely that ESI will have to be produced in native format. The default rule under the amendments is that ESI must be produced either in the form in which it is ordinarily maintained or in a form that is reasonably usable, and the party requesting documents can specify the form of production,” Schoenberg told TechNewsWorld.

Corporations should have protocols in place to ensure that ESI will be maintained in a native format once litigation begins or is reasonably anticipated. For some companies, that could mean implementing new technologies and systems.

Lawyers: Get Up to Speed

Whereas corporate compliance offers begin to wrangle with the new federal rules of evidence, the amendments also force lawyers who haven’t been involved in computer litigation to quickly get up to speed on electronic discovery issues.

The federal rules will require lawyers to sit down and discuss e-discovery issues at the outset of the case, according to Ian C. Ballon, litigation attorney and partner at Greenberg Traurig LLP.

“Companies and their in-house counsel should understand how their systems operate and what material may be lost without adequate preservation. The federal rules provide guidance but do not impose rigid standards or afford safe harbors,” Ballon told TechNewsWorld. “Ultimately, businesses — and their lawyers — must take responsibility for understanding a company’s computer network. Failing to do so could constitute malpractice.”

Is It Fair?

When a lawsuit arises and companies must implement the requirements in the amendments, questions of fairness may emerge. Who pays for the discovery?

In business litigation, counsel for both sides may have an incentive to be reasonable; if one side pushes hard for extraordinary measures, the other will likely do the same.

The same constraints do not exist when an individual or small company sues a large corporation — as in class action suits, employment disputes or tort litigation — because individuals and small companies typically do not have large and complex computer systems, Ballon explained.

“The federal rules, in part, address this unfairness by allowing a company to shift certain costs of discovery to the requesting party. Outside of this narrow exception, cost-sharing remains largely subject to case-by-case evaluation,” Ballon noted.

Spoliation Issues

Spoliation — the deliberate or inadvertent modification, loss or destruction of electronic evidence — is a major issue that companies must address. Any company that deliberately destroys documents should be penalized, but in the world of computer networks, evidence may evaporate unintentionally.

“The federal rules do not fully address spoliation of electronic records, which counsel for large companies must consider at the outset of any case,” Ballon explained. “The federal rules also do not change existing law governing inadvertent production of privileged material, and whether such production waives any privilege attached to the material.”

Sometimes, the amendments provide a safe harbor against sanctions; for instance, when one party loses ESI as a result of the good faith, routine operation of an electronic information system.

However, the amendments make clear that a safe harbor provision does not obviate the need to impose appropriate litigation holds once litigation is reasonably anticipated.

“The Committee Notes explain that ‘good faith’ might require a party to suspend or modify routine operations of systems when litigation is anticipated, in order to prevent loss of relevant information — and the failure to do so could potentially prevent a party from relying on the safe harbor,” Schoenberg said.

“It is important that corporations put protocols in place to ensure that all potentially relevant information — including ESI — is maintained once litigation is reasonably anticipated,” he added.

The bottom line: Save those voice mails and be prepared to retrieve them in the face of litigation.

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