The changes, which have been generally recognized within the corporate legal community for some time, make all companies in the U.S. and some multi-nationals more accountable for preserving and accessing data for electronic discovery requests. Failure to follow the new rules will likely be a costly mistake, resulting in longer, expensive rush job discovery requests, unnecessary and costly settlements of frivolous litigation, and even lost cases and possible fines.
Over the last several years, electronic discovery has consistently become more widespread and costly for enterprises, with costs averaging $1.5 million per defense of a corporate lawsuit, according to Gartner.
The amendments to the FRCP, which were approved by the U.S. Supreme Court, for the first time specify that electronically stored information, including email, should be preserved for possible analysis and production during civil procedures. The rules affect all U.S.-based organizations, and some multi-nationals, and can dramatically increase the time and money spent preparing for litigation.
Although the FRCP amendments are complex, what you can do to minimize the risks of violating them is clear: You must be able to identify the sources of electronic evidence you have, be clear on where it resides, and know how to produce it for opposing counsel if necessary.
While these goals are clear, how to cost-effectively reach them may seem daunting. However, by adopting the following best practices, organizations can minimize the cost and hassle of evolving their infrastructure, and then approach litigation with confidence they can handle electronic discovery properly and efficiently.
Establish good-faith data deletion. The FRCP changes make it imperative that companies develop a best practice for the deletion and disposition of electronically stored information.
In the absence of fully established case law, its critical to demonstrate good faith in all actions and operations, and the key to the good faith concept is to set up deletion procedures that allow for quick and reliable implementation of litigation holds to prevent data relevant to pending or anticipated litigation from being destroyed.
To do this, take the following steps: