Discovery Rules Pertaining to Electronic Record Retention

by on July 8, 2009 · 0 Comment POSTED IN: HR Info Center

You are required to provide all relevant documents held in electronic record retention that you possibly can

Under Rule 34A, the word or phrase electronically stored information is added as a category that’s subject to production. This access to documents held in electronic record retention can be quite intrusive and burdensome and of course, raise issues of confidentiality and privacy within your company.

As far as the form of production Rule 34B addresses that and in that instance, the requesting party can specify the form or forms in which he wants the electronic information produced.

So, they could basically say they want to see all of your information in PDF format. So, you then have to respond and say, well, you know what, we can’t do it in PDF format, it would be too burdensome, too costly. We don’t have the technology. So, if you do make the objection, then you have to state the form in which you want the information to be produced.

If you don’t specify the format in which you want to, the court will do it for you. And, they will either use the form that is ordinarily maintained in your business, which would usually mean some sort of a native format or in a reasonably usable form.

Under Rule 26A, you are to disclose without a discovery request per se. This rule has been around for a while, not just with the Revised Federal Rule. You have to provide the copy or description, all documents including items held in your electronic record retention system. That has been added. That the disclosing party may use to support his claims or defenses.

So, not only are you responsible for providing information that’s requested of you, you then have to voluntarily produce information that you plan to use in support of your claims or defenses.

So, again, if you’re saying you’re going to, you have a description of who your witnesses are, if you’re saying you have a description of what your documents are that you’re going to be use, you better be prepared to disclose that information and to do whatever it takes to protect it during the case.

Now, Rule 26B is probably one of the more exciting provisions here.
And, this will now allow you to identify information that’s not reasonably accessible by your electronic record retention program, because of undue burden or cost. But, suffice it to say, that if information is not accessible, you may not have to produce it discovery, with the caveat that, if you’re going to make that claim, the inaccessible information cannot be the only source of that information.

If the information is accessible, it has to be produced, of course. If it’s not reasonably accessible by your electronic record retention system due to undue burden or cost, then you don’t have to produce it. But, you have to say why it’s inaccessible. In other words, what type of information is there and why is it inaccessible.

So, again, what is considered inaccessible, and what are some of the examples of things that can’t be discovered or held by electronic record retention? Those would be non-indexed backup tapes, legacy information from obsolete systems, deleted data in a fragmented form. So, fragmented form may be considered inaccessible, so that you’re not forced to produce it. But if it’s the only place where the information is contained, it may still be up for grabs and you may still have to produce it.

Edited Remarks from “How to Bulletproof Your Data Storage Strategy: New Legal Rules for Electronic Discovery” by John Isaza, Esq.

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