e-Discovery a Trap for Lawyers and Clients

As many/most lawyers know, the Federal Rules of Civil Procedure were recently amended to provide for methods of handling the discovery of digital information. In the 'old' days [and at present, still] the main place discoverable information resided was in paper records filling a plethora of filecabinets. However, over the years companies and to a lesser extent, individuals, have begun storing information in a digital format on a computer, harddrive, tape system or some other such storage method. Now, if a lawsuit is filed in federal court [and even before that once the litigants are aware of possible litigation] both parties have to retain and be able to provide access to discoverable information in whatever form it is. An article which I read recently at ABANet.org discussed some of the pitfalls and steps that need to be taken in that case: Document Collection.

While this article at times does seem to be more marketing in nature, and perhaps oriented toward the concerns of a defendant, it is helpful in pointing out some of the issues that lawyers and parties in federal court litigation will face: Is there a data retention policy and is it followed? Where are all the versions and copies of the discoverable data stored? How do you pull out legitimately non-discoverable materials from a huge group of documents? How do you identify documents so they can be found down the road?

There are many more issues present under the new Rules and it will take some time to work them out, but starting to think about where all your digital data is would be a good idea for everyone. Both in case you become involved in litigation and because a rational back-up structure is required as well. Nothing lives forever, even digital data.