On December 1, 2006, new amendments to the Federal Rules of Civil Procedure took effect for all pending and newly filed cases governing discovery of electronically stored information. These amendments can be found in Federal Rules 16, 26 and 37 of the Federal Rules of Civil Procedure. These amendments require retention of any potentially discoverable electronic information, the production of non-privileged electronically stored information, and sanctions for not producing electronically stored information and not advising what electronically stored information may be available.
Under these new rules, any attorney representing a company that is or may become involved in litigation must understand a business’ computer network, the technologies and technological work flows that the business has deployed, as well as the sources of electronically stored information that could be relevant in a disputed matter. These amended rules require parties to impose a “litigation hold” on all potentially relevant documents once litigation is commenced or reasonably anticipated. This will require a review of business’ retention policy to make certain that potentially discoverable electronic sources of information are not destroyed.
The new amended rules require parties to address electronic discovery issues in the “meet and confer” conference that is required prior to the initial Rule 26 disclosures. At the meet and confer conference, an attorney is required to disclose what sources there are of electronically stored information at a company and possibly how the information can be accessed and searched. One of the issues for discovery is the form in which electronically stored information will be produced.
The language of the amended rules would clearly include electronically stored information such as emails and probably voicemail. Any emails, including internal emails, that are relevant to the issues in litigation likely must be produced unless they come under some type of privilege and the rules remain the same for a party asserting a claim of privilege, that party has the burden of establishing that a privilege applies that would prevent production of the information.
At the present time, these rules apply only to federal lawsuits. It is very possible, and likely, that the various states will adopt the same or similar rules at sometime in the future. In the interim, judges from state courts may look to rulings of the federal court for guidance in resolving electronically stored information discovery issues.
From a claim handling standpoint, it is important that when an adjuster learns of a potential claim, the adjuster needs to contact the insured company and make certain a litigation hold is placed on electronically stored information. It is probably a good practice that this be followed up in writing. Usually when a claim comes in, an adjuster will contact the insured company for information. In the initial contact with the insured company, the importance of maintaining and keeping electronically stored information should be brought to the attention of the insured company. A practical problem may be getting the attention of a person who can put a litigation hold into effect. In many situations a company could accidentally destroy exculpatory information without a realization of how important that information could be in a lawsuit. The other danger is that an insured company could destroy relevant information that could result in a judge imposing sanctions that would limit or preclude a viable defense.
