Tuesday, December 5, 2006

Misconceptions about the changes to the FRCP

By: Courtney David Mills
IPA Technology Director and Litigation Paralegal at Hoover Hull LLP

Ever since the mainstream media (I hate using this term, but it seems to be accurate) received notification about the changes to the FRCP, their explanations to the general public have been frightening to say the least. I have heard some news stories say that companies are now required to log and store every email you send, every web page you visit and every communication that you make to the outside world. WRONG!!

Although the misperceptions are numerous, I would like to discuss the mis-representations about document retention. The rules really do not address document retention other than the safe harbor provision of T.R. 37 which states that "[a]bsent 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." Routine, good-faith operation does not mean that companies need to store everything for an indefinite period of time. It simply means that companies should have document retention policies in place and should abide by them. If they fail to do so, and potentially relevant information is lost, they will have a hard time claiming protection under the safe harbor provision of T.R. 37, and will likely be open to charges of spoilation of evidence. It doesn't matter whether the policy is to keep email on active data servers for 1 week or 1 year. Just as long as the company has a policy, and follows it.

I suppose the lesson for the day is that while the rule changes are certainly relevant to the legal profession in general, they are probably only interesting to the geeks in the legal profession (I count myself as one). The public at large will likely not notice much of a difference in their day-to-day lives.

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