New E-Discovery Rules Take Effect

You have to know what information your company is storing and where it's located. And if you think it's going to be too difficult or expensive to find court-requested data, you'll need to prove it.

The U.S. legal system on Friday made good on its promise to get stricter in compelling companies to produce electronically stored information as evidence in civil court cases. As of Dec. 1, companies and their IT departments must produce information earlier in the litigation process, and if they can't, they'd better be ready to explain why.

If you're not a fan of ambiguously worded legal documents, what follows is an executive summary of the amended Federal Rules of Civil Procedure.

You have to know what information your company is storing and where it's located. If you have a policy governing how long your company stores information before it's purged, be prepared to prove that policy was in effect and enforced before the court's request for information. And if you think it's going to be too difficult or expensive to find court-requested data, you'll need to prove it.

E-mail has been used as evidence in court cases for years; the amended rules also cover electronic documents, spreadsheets, image and sound files, and database info. The language is inclusive enough to cover any electronic media developed in the future. The amended rules explicitly state that requested information must be turned over within 120 days after a complaint has been served on a defendant. If this deadline isn't met, it's possible that electronic evidence could be ruled inadmissible. Or in the instance of a defendant sitting on potentially damaging evidence, courts can levy fines and other penalties.

The amended rules are to CIOs what Sarbanes-Oxley was to CFOs, says Riki Fujitani, a former attorney who's now president of IT service provider Hoike. While the rules apply to federal cases, state courts tend to follow the higher courts, he adds.

The courts are showing their understanding that information is much easier to retrieve from modern storage technologies, while at the same time acknowledging that finding the right information on obsolete media could be just as difficult as digging up a paper document in a warehouse of filing cabinets.

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