With emails often playing a critical role in trying such cases as wrongful termination and employee discrimination, the rules spell out guidelines for the "orderly and structured management of electronically stored data in the context of litigation," says Steve Kaufmann, litigation partner at Morrison and Foerster, an international law firm that specializes in e-discovery.
"The amendments basically put structures in place to manage and deal with the expansion of electronic data that's now central to lawsuits," he says. "The data ranges from information in spreadsheets and databases to what's most notable, particularly emails and all of the stuff that is relevant to discovery before a case goes to trial."
The rules, which require parties to meet within the first 30 days of a lawsuit's filing to discuss electronic evidence, seek to prevent the plaintiff's attorney sending the defendant on an often costly and time-consuming trip to retrieve electronic documents that may be stored on backup tapes, says Mike Ivanov, vice president of product marketing at Santa Clara, Calif.-based Mimosa Systems, a disaster recovery and email storage management firm. "The opposing legal team will send you on a fishing expedition," he says.
The rule changes come in the wake of Morgan Stanley agreeing earlier this year to pay $15 million in civil fines to settle Securities and Exchange Commission charges it failed to retain tens of thousands of emails sought in cases against the brokerage firm. Now, under the amendments, businesses must properly manage and be able to produce the retrieved electronic information in its native format, which could cause headaches for unprepared IT departments, says Sophie Pibouin, COO of Chronicle Solutions, a New York-based provider of content network recordings.
"They need to be able to capture and monitor electronic documents and be able to replay them at any time if the general counsel asks them to find documents," she says, adding this also includes IM communications. — DK