Come December 1st, 2006, the legal world will be formally introducted to the Digital Age.  According to one Partner identified in the National Law Journal’s recent article, “everybody is a little terrified” of the change in the Federal Rules of Civil Procedure.  Electronic discovery is, of course, of particular concern for many General Counsels, in house executives, and law firms alike.

While the previous rules of Civil Procedure were somewhat unclear on electronic discovery, the updated rules are much more specific and offer significant guidance.  Electronic discovery is now a distinct category of discovery with two internal tiers.  Electronic information is either reasonably accessible or inaccessible due to an undue burden of retrieval.  To claim the latter requires a party to provide substantiated evidence of the undue burden, which the court may subsequently disregard and require production regardless.

One headache many attorneys are foreseeing is rule 26(f), which requires parties to “discuss any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”   All of this is required to happen 21 days before the first scheduling conference, thereby adding a lot of stress to an already stressful period.

According to one attorney in the National Law Journal’s article, “case law is now mandating that attorneys understand their client’s backup system, so they will understand what data is where and what steps must be taken to preserve evidence.”
The importance of the new rules of Civil Procedure is not lost on us at Symagio.  As we mentioned in our previous posting, companies are now liable to produce all of their electronic information (excluding privileged and attorney-client products), regardless of their form or location.  That means the backup tapes you store in your employees basement from ten years ago would likely be required for production under the new rules.  Fully understanding, simplifying, and managing your backup plan is smart for a number of reasons, with legal liability chief among them. 

The way we look at it, many companies have two choices.  They can continue in their haphazard backup procedure, or they can work with a remote, disk to disk based online data backup solution.  The former might be adequate for many, but the risks of liability are simply enormous, especially in light of the upcoming change in the Rules of Civil Procedure.  Not only is it a smart business strategy to product your important electronic information, but the liability of inadequate protection would likely bankrupt many operations. 

This entry was posted on Sunday, August 27th, 2006 at 10:40 pm and is filed under General. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.