Welcome to Part 2 of our blog series on the proposed amendments to the Federal Rules of Civil Procedure. If you haven’t read Part 1 yet, you can check it out here: Understanding Proposed Changes to FRCP and How They Impact You: Part I.
Last week we discussed scope, proportionality, and time tables related to FRCP eDiscovery rules, and this week we are going to look at the more serious issues of producing electronically stored information and the ramifications of an inability to do so.
In today’s heavily regulated business environment, it is of tantamount importance to fully understand the responsibilities a company could face in the event of litigation – especially related to production and preservation of electronically stored business data. These issues are some of the most important and far reaching changes that would be affected if the proposed amendments to FRCP are passed, and if you don’t fully comprehend the effects it will have on your business, it could have serious consequences.
Production, Preservation, and Potential Sanctions Affected by the Proposed Changes to FRCP: What They Mean to You
1. Producing Electronically Stored Documents
The amended rule now specifically provides for producing copies of electronically stored information in lieu of allowing an inspection, but still maintains that they be submitted in the same time frame as would be dictated by an inspection. It also requires that if copies of are to be provided, it must be specifically stated in a written response to the request for said information.
2. Failure to Make Disclosures or to Cooperate in Discovery | Sanctions
There are now very explicit, uniform rules and procedures in the event the court shows that a party “failed to preserve discoverable information that should have been preserved.” The courts may:
- Permit additional discovery of information that would otherwise not have been included in the scope of discoverable information
- Order curative measures such as requiring the failing party to restore or obtain the missing information – or develop supplemental information for the missing information
- Order the failing party to pay expenses caused by the failure, including attorney’s fees or additional discovery fees
- Allow arguments relating to the significance of the lost information
The amended rule also dictates that the court must consider several factor’s relating to the party’s failure to preserve pertinent information, and must levy sanctions and curative measure accordingly.
What does that mean to you? Simply put, failure to preserve or provide electronically stored information can and will come with significant penalties including additional expenses related to discovery; negative implications in courtroom arguments related to the case or the significance of the lost information; or even more serious sanctions.
However; the silver lining of this amendment is that courts must consider the party’s efforts to preserve the information before levying penalties against them. If a party has made reasonable efforts to preserve discoverable data, they should not be subject to sanctions for the loss of the information in question, as they are only to be imposed “for willful or bad faith actions,” or exceptional circumstances.
The Bottom Line
All of these amendments related to eDiscovery are practically begging people to get an archiving solution in place for all of their business critical electronic data sources. Because these amendments now specifically address the production of copies as an alternative to allowing inspection or access to raw data, it means that if you have an archive in place, there is no need for you to grant a 3rd party with access to your most important business assets. It also requires courts to consider a party’s preservation efforts, and if they have made good faith efforts, the possible ramifications for lost information will be significantly reduced.
In the committee’s notes on the amendments, they acknowledge what every company is concerned about, the increasing volume and sources of data – including social media data- that may be required for discovery, and the growing costs associated therewith; they also make special considerations for company’s preservation efforts – with specific reference to litigation holds for electronically stored data.
The preservation of electronically stored information and the importance of data retention for purposes of eDiscovery is something that we at ArcMail Technology know a thing or two about. Our archiving solutions like the Defender and Cloud Storage Gateway go beyond merely satisfying the current laws, but also already satisfy the proposed amendments to the FRCP. Running on our award- winning Defender platform, all ArcMail solutions allow simultaneous basic or advanced search across multiple data sources including traditional server based email like Microsoft Exchange, hosted email such as Office 365 or Google Apps Gmail, SharePoint files, Salesforce Chatter, and yes, social media data. They also come built in with options for multiple retention policies and legal holds, ensuring you secure exactly what you need in the event of a discovery request. Searching for old data can be time consuming and expensive- and presenting it for eDiscovery can be even more so; that’s why ArcMail Technology strives to ensures that our clients have the most secure and reliable data retention services available, both now and in the future.
This blog was written with the assistance of Michael A. Walker.