New federal rules for discovery of electronically stored information (ESI)

Amendments to the Federal Rules for Civil Procedure (FRCP) take effect today that include major changes regarding how companies must produce electronic information during discovery proceedings of civil litigation.

The new rules now explicitly identify "electronically stored information" (ESI) as a distinct category of discoverable information, separate from "documents." The rules dictate what the parties do during discovery to identify and produce ESI.

Nossaman Litigation has an excellent bulletin summarizing the changes from a legal perspective. I would also recommend this summary from Morgan Lewis Resources, on the impact of the changes. Morgan Lewis's document categorizes the new rules as follows:

The eDiscovery amendments cover five areas:

1. Parties [to the litigation] must meet and confer early to address issues relating to eDiscovery, including the form and preservation of electronically stored information, the problems of reviewing the electronically stored information, and assertion of privilege.
   
   
2. Electronically stored information that is not "reasonably accessible" does not have to be produced, unless the requesting party can show good cause.
   
   
3. In limited circumstances, a claim of privilege may be asserted if a party inadvertently produces electronically stored information that is potentially privileged. The producing party may require the return, sequestration, or destruction of the information pending resolution of the privilege claim.
   
   
4. Any review of business records conducted in response to interrogatories must now include searches of electronically stored information. "Electronically stored information" is specifically distinguished from "documents" or "things."
   
   
5. A safe harbor from sanctions is available when "despite reasonable steps to preserve discoverable information" electronically stored information is lost as a result of routine computer operations.

I see very little in the technology press about these amendments. John Soat at Information Week has been following the issue, but most others have not.

I believe that the new rules will have a major impact on IT organizations. Many CIOs are not yet aware of these new regulations. The definition of ESI includes all kinds of information--unstructured data such as voicemail messages, email, and images, as well as structured information such as database records. There are major implications for how companies manage backup media and disaster recovery storage. The rules do seem to cut some slack in cases where electronic information is too difficult to product--but I don't see anything in the rules that lets small companies off the hook.

And all this is taking place at a time when storage management disciplines in companies are actually declining.

One thing is for certain: this spells big business for storage vendors and vendors of information management solutions. And lawyers.