Some Federal Rules Govern Electronic Records Management

by on July 6, 2009 · 0 Comment POSTED IN: HR Info Center

Certain Rules Dictate How Discovery of Electronic Records Management Takes Place

Understand the universe of electronically stored information and why it is that the Federal Rules have stepped in to deal with this issue of electronic records management.

And, basically, this constitutes just a sampling of all the different types of electronically stored information that you need to have a grip on, when you deal with electronic discovery. Electronic records management in this situation is pretty daunting; the list keeps growing as the technology advances more and more. Obviously, the storage capacity increases and therefore, there’s that much more opportunity for information to be contained through a digital haystack.

So, what have the rules been done to help you deal with that digital haystack? Or, what are they imposing upon you when you respond to discovery as you bear your electronic records management in mind.

It begins with this meet and confer rule, Rule 26F. So, before you go to meet the judge for the first time, you need to have sat down with the opposing side to talk about issues such as how you’re going to preserve your privileged information to make sure that it doesn’t wind up being disclosed inadvertently. What format are you going to use to produce the information to the other side and in addition to that, what are you going to do to protect the claims of privilege. So, you’re going to be having those discussions at least 21 days before you meet with the judge.

Then, under Rule 16B, the judge is then going to schedule a pre-trial conference. And, at that conference, he’s going to give you a scheduling order, a case management order that’s going to tell you, basically, these are deadlines that you have to abide by.

So, what’s important here and what’s critical for you is that you and your counsel need to be aware of the promises that you are going to be making to the court when you appear at that pre-trial conference. If, you say this is the information that we’re going to make available, you better be sure that that information is available, that it is accessible and that you can meet the deadlines that the judge is going to impose upon you when you show up at this pre-trial conference.

All the more reason why your electronic records management needs to be set up well in advance of this litigation, certainly, well in advance of the case management conference or the pre-trial conference, because you need to be very careful. Where companies are getting into the most trouble is by making promises that they can’t keep.

If you say under oath you’ve produced everything we got, and then all of a sudden, you find all these backup tapes in our closet, you want to produce now. That’s when the courts have come down really hard on companies and said, that’s considered spoliation or 2A, the violation of our discovery order and it’s when parties get into trouble.

Under Rule 33D, the word ‘business record’ has been revised to include electronically stored information. So, there is no longer a need to be trying to come up with some weird interpretation of the rules to argue that electronically stored information is discoverable.

In practicality, what this means is that the requesting party may examine and copy your electronic business records. You may have to provide technical support or direct access to your electronic records management systems. And, you as the responding party may choose to address confidentiality concerns.

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

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