The Risk Manager, Summer 2006

Amended Federal Rules of Civil Procedure on E-Discovery approved by the U.S. Supreme Court require discussion between the parties about electronically stored information in advance of the discovery process, allow for a claim of privilege for inadvertently disclosed electronic documents, and establish a ‘Safe Harbor’ from sanctions for routine destruction of electronic stored information. The Safe Harbor provision shown below is an important risk management consideration because many lawyers assist clients in developing document retention and destruction programs:

Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions
(f) Electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Committee Note
Subdivision (f). Subdivision (f) is new. It focuses on a distinctive feature of computer operations, the routine alteration and deletion of information that attends ordinary use. Many steps essential to computer operation may alter or destroy information, for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part. Under Rule 37(f), absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system.

The amended rules go into effect in December unless Congress disapproves them which is not considered likely. The approved rules are available on the Internet at http://www.uscourts.gov/rules/Reports/ST09-2005.pdf. For more information on document retention and destruction programs read the KBA Bench & Bar article “Shredded Any Good Documents Lately?” available on our web site.