This "reasonably accessible" test suggests that you have to search your files in earnest, but you dont have to "jump through hoops" to find data that's just too hard to get to. On motion, you must show the information is not reasonably accessible, even though you tried to retrieve it.
But stay tuned here, many practitioners believe there will be significant ongoing litigation surrounding rule 26(b)2, as companies wrestle with the cost and expense of eDiscovery.
The second key provision that will affect us is Rule 37(f). This is the "safe harbor" provision of the rules that states if you make a good faith effort to maintain your data in an active records retention policy, you will not be liable to produce the record if it's been deleted in the normal course of business.
This, of course, is a good thing for most companies. However, it does require you to be active in enforcing your policies. If you delete records consistently, programmatically, and you can demonstrate your program, you have the power to control the depth of an eDiscovery search according to where you think Rule 37 will end up.
If you don't actively implement your own programs, and in so doing, you aren't consistent, then courts will give your company limited access to this safe harbor.
So with the new rules comes a call to action. IT is the critical element within a mix of departments of any organization. There are several steps that should be taken, including:
Identify an eDiscovery Tsar within the organization whose role it is to fully understand how these legal imperatives effect ongoing records retention policies and storage initiatives within the organization;
Create and publish a records retention policy;
Enforce that policy;
Form a standing committee made up of IT, Legal, Finance and Human Resources (these last two are where most of the potentially explosive documents are created), whose job it is to audit the holding and elimination of data. This group is separate from the group (usually IT) that is tasked with enforcing the policy;
Identify the new platforms that are coming on-line that extend the existing document management, records retention and messaging applications. As well, investigate some of the new technologies that are laser-focused on content management, tagging, search, production and storage of documents within organizations.
In conclusion, 2007 will see significant activity in the courts, as these new rules play their part in discoveries and law suits. You need to get ready for the fallout. There are real sanctions in these rules, and as a result, the way data is created, managed, stored and searched will all be affected in the coming year and beyond.
Michael Sears is the principal advisor on eDiscovery at Mathon Systems. He is a member of the California Bar Association, and a frequent commentator on the nexus of the law, business and technology.
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