“ESI” Rules Kick in 12/1/06


Federal Court Rules to regulate

litigants’ preservation and production

of e mails, other digital info


Electronically stored information will very soon become the subject of court regulations. Effective the first of next month, unless Congress says otherwise, ESI amendments to the Federal Rules of Civil Procedure will go into effect. 

This is good, but also somewhat problematic.  The federal courts took a step forward two years ago with the implementation of e filing and the creation of the subscription PACER service.  This was a positive step but required parties to create PDF files for all attachments and maintained the requirement to file hard copies.

The ESI amendments further reflect the courts’ recognition of the profound impact of e mail and other electronic files.  Controls are needed; producing hundreds of e mails in hard copy is a pain in the neck.  Managers write e mails that boggle the mind with their incriminating content, and this can lead to concealment and worse, spoliation. 

But are the rules actually needed? Litigants routinely seek discovery of digital files already, and the new amendments create procedures and structure that may be overkill.

In any event, increasing judicial controls over how digital information is created, stored, and disclosed signal that HR practitioners and counsel need to audit the information processes within the organization.  As paper requires constant management, digital files do also, and the speed and ease with which they are created and stored can make things messy – legally so.  Employers cannot wait for a lawsuit to make smart decisions about the creation and storage of digital files. 

The standards for creation and storage must be rigorous.  For example, no manager should send an e mail of any substance unless its draft has been printed out and read by the manager.  Reading and retention of the printed word on the screen are inferior to reading and retention of the same text on paper.  Another example: information technology policy and procedures in employee handbooks and management manuals should be revised at least once a year.

An employer needs to know what its information is, what form the information is in, and where it is.  This housekeeping is no more vital because the information happens to be in digital form.  You have the same ongoing standards to maintain with paper also.  Ultimately these new rules come down to the same issue for all media:  keeping track.  

Here is a thumbnail sketch of the changes to the Federal Rules of Civil Procedure:

Rule 16 – will now, as a practical matter, strongly encourage, if not require, discussion of  electronic files at the pretrial conference.  

Rule 26 – (a)(1) disclosures must now provide a description by category and location of all ESI.  Rule 26(b) creates two categories of ESI: that which is reasonably accessible and that which is not.  The latter can be a target for production if the party seeking it makes a showing of good cause.  Rule 26(b)(5)(B) addresses inadvertent production of digital information that is privileged.  Under the amendments the discloser must “within a reasonable time after production” request that the opposing party “return, sequester, or destroy” the inadvertently disclosed item(s).

Rule 33 – eliminates the distinction between paper and electronic business records.

 Rule 34 – provides that the requesting party specifies the form in which the ESI should be produced, and that if the opponent may object; barring a request for a particular form the opponent may produce the ESI in whatever is its ordinary form, e.g., CD, PDF file, DVD.

Rule 45 – similarly, a party subject to a subpoena for ESI can object that the form requested is too burdensome or costly, but if no form is dictated by the subpoena the party can comply with the subpoena by providing the ESI in the form that it is usually maintained.