Initially propelled from the rise of instant messages and word processed documents, today’s realm of “E-Discovery” is a world unto itself where nearly everything and anything not only on a hard-drive, but in the internet cloud, can be called upon for production.
It was in 2006 that the United States Supreme Court amended the Federal Rules of Civil Procedure to reflect this pivotal change in discovery: a classification for electronic records. From producing voicemail recordings to deposing IT managers, E-discovery has emerged as a multi-billion dollar industry among its practitioners. The rise of E-discovery has engendered a separate body of Electronic Discovery law from select specialized high profile cases to becoming an integral part of routine civil and criminal litigation.
However, while you may have made your personal life electronic using social media and online banking, your business (or your client’s businesses) may only have recent history of electronic records. What if you are genuinely having a hard time with demands for production for an older document you neglected to scan? One option to consider is enlisting the assistance of an E-Discovery consultant.
Mark Hirschfeld, writes the following his blog post If You Want to Avoid Sanctions, Hire an E-Discovery Consultant:
“The Federal Rules of Civil Procedure were updated almost a decade ago to include rules regarding the production of ESI, but the case law involving the discovery of ESI is still maturing,” Hirschfeld writes. “Many litigants producing documents in litigation are still trying the old ‘my system isn’t good enough to find the documents’ defense. However the Courts are starting to become wary of such defenses.”
Subsequent amendments to the Federal Rules of Civil Procedure, most recently in 2010, have continually refined the E-Discovery process. In today’s courts, electronic information with nexus to discovery is broken down through several well-documented stages: identification, preservation, collection, processing, review and production. Laws pertaining to E-discovery vary from state to state. Having quick access to the local rules pertaining to E-discovery in your trial jurisdiction is imperative to be successful in litigation.
What are the implications if your client or opposing council has “lost” the electronic information demanded for production? Federal Rule of Civil Procedure cites: “Absent exceptional circumstances, a court may not impose sanctions under the rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” FRCP 37(e).
However, this does not mean that it is easy to skirt around production. For instance, Federal Rule of Civil Procedure 37(f) cites the following regarding the failure to participate in framing a Discovery Plan: “If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.“
Rules are complicated – SmartRules are easy. To learn more about the Federal Rules of Civil Procedure pertaining to E-discovery, visit SmartRules.com.