Comment New Discovery Rules (Score 1) 193
To put this into context, what is being discussed is a new set of discovery rules which are applicable to Federal lawsuits, but not yet (in most places) state court lawsuits.
In the interest of full disclosure:
IAAL (but spent the first dozen years of my working life as system engineer - and I still tend to view issues like one)
this is not a legal opinion and does not constitute representation
YMMV
The new rules govern so-called e-discovery. Different Federal court jurisdictions had developed different rules regarding discovery of electronically stored information. Now the Federal Rules of Civil Procedure address the situation.
For those lucky enough to be unfamiliar with U.S.-style litigation, it is a principle of U.S. procedure that both parties have to cooperate in "discovery." Essentially, each side of the case gets to ask for documents (including electronically stored data) and for the identity of witnesses who have information relevant to the case. The other side, with some limits, has to provide the documents (including electronically stored data) and identify the witnesses. The requesting side gets to use the documents for any case-related purpose and gets (again with some limits) to question the witnesses, under oath, early in the litigation (usually long before trial). So, if you're absolutely certain you'll never be sued or never have to sue anyone, then these rules will never apply to you (and you're clearly living outside the U.S., in a state of denial, or in your parents' basement).
These new rules are intended to create a common set of rules throughout the U.S. They also, in my opinion, tend to naively treat electronically stored data as the equivalent of documents. Once you're sued (or sue) you are now required to preserve copies of all relevant (and that is a really broad standard) documents (including electronically stored data). You will need to preserve all backups. When the time comes to produce this data, you are going to have to produce it in a manner which the other side can use. In other words, you can't just give them proprietary data formats or print spreadsheets and databases to hard copy (both unfortunately common past practice). You may need to provide the other side with tools to access the data.
The problem comes from the volume of data, and from dynamic data structures, which are constantly in flux, coupled with the fact that you never, ever, want to produce something to the other side without having your lawyer review it. (In fact, it may be malpractice for your lawyer to produce something without reviewing it.) Even in medium to large sized businesses, almost noone in legal or corporate has really thought about these issues. I have an analogy that I like to use with my clients and other attorneys, many of whom don't understand the difference between a kilobyte and a terabyte, to give them a grasp of the scope. I keep a cheap copy of the Complete Works of William Shakespeare on my desk. I pick it up and point out that a simple copy of this in plain text and without any graphics or fancy formatting, takes up just a bit more than 5 Megabytes of storage. A 250 Gigabyte disk (now ubiquitous in many businesses) can hold approximately 50,000 copies of this. That is the potential scope of the problem, and it doesn't even begin to address the issue of metadata and what it reveals about your documents, who touched them and when. For example, most people have no idea that the Word document that they are prepared blithely to give to opposing counsel may include prior draft language invisibly within it.
This is a huge boon for specialty information/litigation management firms.
In the interest of full disclosure:
IAAL (but spent the first dozen years of my working life as system engineer - and I still tend to view issues like one)
this is not a legal opinion and does not constitute representation
YMMV
The new rules govern so-called e-discovery. Different Federal court jurisdictions had developed different rules regarding discovery of electronically stored information. Now the Federal Rules of Civil Procedure address the situation.
For those lucky enough to be unfamiliar with U.S.-style litigation, it is a principle of U.S. procedure that both parties have to cooperate in "discovery." Essentially, each side of the case gets to ask for documents (including electronically stored data) and for the identity of witnesses who have information relevant to the case. The other side, with some limits, has to provide the documents (including electronically stored data) and identify the witnesses. The requesting side gets to use the documents for any case-related purpose and gets (again with some limits) to question the witnesses, under oath, early in the litigation (usually long before trial). So, if you're absolutely certain you'll never be sued or never have to sue anyone, then these rules will never apply to you (and you're clearly living outside the U.S., in a state of denial, or in your parents' basement).
These new rules are intended to create a common set of rules throughout the U.S. They also, in my opinion, tend to naively treat electronically stored data as the equivalent of documents. Once you're sued (or sue) you are now required to preserve copies of all relevant (and that is a really broad standard) documents (including electronically stored data). You will need to preserve all backups. When the time comes to produce this data, you are going to have to produce it in a manner which the other side can use. In other words, you can't just give them proprietary data formats or print spreadsheets and databases to hard copy (both unfortunately common past practice). You may need to provide the other side with tools to access the data.
The problem comes from the volume of data, and from dynamic data structures, which are constantly in flux, coupled with the fact that you never, ever, want to produce something to the other side without having your lawyer review it. (In fact, it may be malpractice for your lawyer to produce something without reviewing it.) Even in medium to large sized businesses, almost noone in legal or corporate has really thought about these issues. I have an analogy that I like to use with my clients and other attorneys, many of whom don't understand the difference between a kilobyte and a terabyte, to give them a grasp of the scope. I keep a cheap copy of the Complete Works of William Shakespeare on my desk. I pick it up and point out that a simple copy of this in plain text and without any graphics or fancy formatting, takes up just a bit more than 5 Megabytes of storage. A 250 Gigabyte disk (now ubiquitous in many businesses) can hold approximately 50,000 copies of this. That is the potential scope of the problem, and it doesn't even begin to address the issue of metadata and what it reveals about your documents, who touched them and when. For example, most people have no idea that the Word document that they are prepared blithely to give to opposing counsel may include prior draft language invisibly within it.
This is a huge boon for specialty information/litigation management firms.
