Six Important Reasons Not to Ignore FRCP

The December 2006 amendments to the Federal Rules of Civil Procedure covering electronically stored information (ESI) have a potential impact all organizations, regardless of size and type. School districts, associations, governments, churches, as well as businesses, must all be aware of these new obligations for producing e-mail evidence during the discovery process of civil litigation.

According to a recent Enterprise Strategy Group (ESG) survey, close to half of all USA organizations (46%) have had an e-Discovery request in the past 12 months. You should pay attention to FRCP because statistically, your turn could be soon and you may not see it coming.

Here are six reasons not to ignore FRCP:

1. Ignorance is no longer a defendable position

Rule 37 says that safe harbor from the need to produce e-mail evidence can only be claimed if there is evidence of “good faith operation”. A process that automatically captures all e-mail is the safest approach because it is the best possible demonstration of Good Faith.

2. Deleting e-mails to hide a “smoking gun” no longer a safe strategy

A policy of deliberately deleting e-mail correspondence for the purpose of destroying future evidence is unlikely to be deemed as Good Faith and as a result, no longer a common practice.

3. There is no limit on the age of messages that can be requested

The cost of restoring backup tapes to a searchable repository is about $3,000 for each tape, so by minimizing the number of tapes you have to restore, you can avoid an enormous legal expense.

4. A good e-mail retention system can give you a competitive advantage

Rule 16 requires that both parties agree how electronic evidence shall be handled, early in the discovery process. Your ability to produce e-mail evidence on-demand puts pressure on the other party to meet your high standard.

5. Subpoenas now presume e-mail records

Whereas in the past, discovery requests specified when e-mail messages were required, now with the new Rules 45 and 33, even when not requested specifically, relevant e-mail messages are to be included with interrogatory reviews and subpoenas.

6. The outset of litigation is not the time

Rule 26 states e-mail evidence must be produced early in the process (e.g. within 30 days), and therefore the outset of litigation is the worst possible time for you to begin addressing e-mail retention.

For a copy of the white paper called A New Imperative for E-mail Evidence click here.