Federal rule changes impose new duties to maintain computerized evidence

By Marc Rosenberg

Federal courts have changed discovery rules that will require parties to follow stringent standards for retaining and producing electronic evidence. The new federal rules are a harbinger of similar changes to discovery rules in state courts.

On December 1, 2006, new Rules of Civil Procedure related to Electronic Discovery will take effect in the federal courts. Most of the major changes related to e-discovery will appear in Fed. R. Civ. P. 26(a)(1)(B), 26(b)(2), 26(b)(5), 26(f), 33, 34, 37, and 45.

The new rules have the potential to create serious new demands on attorneys and their clients, particularly corporate or governmental entities. Violation of the new rules could lead to stiff monetary fines, exclusion of evidence, and adverse jury instructions.

For example, for Rule 26(a) initial disclosures, parties now will have a duty to disclose where electronically stored information might be stored. E-discovery includes such things as individual computers, main network storage units, and backup tapes.

Therefore, at the very start of a new federal lawsuit, the attorney will have to speak with the client’s IT person to find out what information is electronically stored, how it is stored, how it is maintained, and where it is kept. Parties and their counsel will need enough expertise in the technical aspects of computers and data storage and retrieval to meet these new obligations.