Federal rule changes impose new duties to maintain computerized evidence

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In addition, the attorney must have the client issue “litigation hold” at the beginning of the case and periodically while the case is pending. This litigation hold would require a corporate client to instruct anyone using its computers or other electronic devices not to delete or destroy any potential evidence in the case.

The new rules do contain a “safe harbor” provision that may protect a party from sanctions for failing to provide material lost in the routine operation of a party's computer system. However, if existing federal case law is any indication of things to come, federal courts generally will not excuse attorneys’ or clients’ mistakes or ignorance of the new rules.

New Rules 33 and 34 now clearly require that electronic evidence be produced, and they now permit the requesting party to request the electronic format in which the other side must produce it. For cases in which production of the electronic evidence is unusually expensive, the rules set out procedures for the responding party to ask the court to shift the cost of production to the requesting party. Also, since discovery now often could entail production of huge amounts of electronic data from a party’s computer systems, the rules now include a procedure to follow if electronically stored privileged documents are produced inadvertently.

Many of the new rules’ provisions derive from the holdings in one case, Zubulake v. UBS Warburg, LLC, in the Southern District of New York, which generated six different published opinions. See 217 F.R.D. 309, 230 F.R.D. 290, 216 F.R.D. 280, 220 F.R.D. 212, 229 F.R.D. 422, and 382 F. Supp.2d 356. Several later federal-court cases also clarify what effects the new rules may have on litigation. So while the new rules do not formally take effect until December, case law that imposes such e-discovery obligations already is evolving and could affect litigation that is pending now.