Electronic Discover Alert
The Electronic Discovery Amendments to the Federal Rules of Civil Procedure went into effect December 1, 2006, and placed new requirements on companies faced with the prospect of litigation. As a result, the standard by which a court will evaluate a company’s document retention policy during litigation has been substantially raised. A company can no longer ignore electronic evidence. The Amended Rules require companies to have policies that address the day-to-day handling of electronic documents that would make these documents accessible during litigation and/or explain their destruction. In particular, a company must:
·be able to produce its electronic information in native format or a reasonably usable format;
·have a reasonable document retention policy to take advantage of the safe harbor provision of the Amended Rules and avoid being sanctioned by the courts in the event certain electronic documents have been destroyed;
·establish procedures to address the need to halt the destruction of documents when it has notice of a dispute;
·understand the flow of its electronic data retention system and location of electronic documents to be able to fully and properly respond to discovery requests; and
·be proactive in finding and retrieving electronic documents prior to the start of litigation to avoid claims of spoliation by the opposing party.
A company with a sound document retention system in place may limit its liability and risk of loss due to the inadvertent destruction of electronic documents. Failure to address the issues above, however, could result in major monetary consequences for your company. As a result, whether or not you are currently facing litigation, it is essential to evaluate your company’s document retention policy and determine if it complies with the requirements above. Strong & Hanni has analyzed the Amended Rules and the impact they will have and can help you update your current policies and determine what steps should be taken to bring your company’s practices into compliance.
For more information, please contact a member of our Business Group or email the group at business@strongandhanni.com.
