Will Civil e-discovery Affect Me?
On December 1, 2006, the amendments to the Federal Rules of Civil Procedure regarding electronically stored information (the so-called “e-discovery”) will go into effect. In short, the amendments change the discovery rules regarding e-discovery (e-discovery in the initial disclosures, guidelines regarding the scope of e-discovery, e-discovery production, the incorporation of electronic data in discovery answers and subpoenas for electronically stored data). If you are prepared, it will provide dividends. If you are not, it could spell disaster. The key for preparedness is to consider corporate practices now and make sure that they are up-to-date and consistent with the scope of the amendments.
Under the new rules, any company/entity that maintains electronically stored information is now subject to potentially mind-boggling discovery: from e-mails to web pages to draft documents to back-up data. The list is potentially endless. And you can bet this will carry over to the investigation of environmental crimes. Imagine a grand jury subpoena that requests a laundry list of e-discovery.
So, what information can be sought via an e-discovery request? If you can conceive of it (and even if you cannot) nearly all electronic information is discoverable. There are limits in the civil context under Rule 26(b)(2) which provides: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” I do not know what that means. What does “undue burden or cost” mean? Does this carry over to the criminal context?
Under the current state of the law, document retention issues get careful scrutiny (i.e. is it reasonably expected that the document(s) may be relevant to current or future litigation on a known or expected claim?) The amendments to the Federal Rules of Civil Procedure do not change the current state of the law with respect to document retention.
Is this going to prove to be a bonanza for the enforcing authority? Who knows? As I set out before, sometimes the only difference between a civil and criminal charge is who gets to your door first.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii