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Employee Electronic Communications

Federal Rules of Civil Procedure Related to Discovery and Electronically Stored Information

On April 12, 2006 (and effective Dec. 1, 2006), the below listed Federal Rules of Civil Procedure were amended to clarify the process of retrieving, saving and producing electronically stored information in anticipation of and during litigation. In part these rules were necessary to clarify inconsistent developing case law and disparate local rules. A term of art used in discussing the rules is ESI or "electronically stored information." Interpreted broadly, the term ESI would include emails, computer and network activity logs, cache and temporary Internet files, digital recordings, voices mails stored in electronic format or accessible via computer, spreadsheets, telephone logs and virtually anything storable in electronic format. The rules impose an obligation to identify data that is potentially relevant and reasonably accessible, as well as data that may be relevant but not accessible.

There is a safe harbor in Rule 37 that states as follows:

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.

Parties to litigation claiming production of relevant ESI would be prohibitively expensive will have the burden of showing this is the case.

The new rules serve to highlight the need to have a data retention policy that covers both paper and electronic data. The policy should address how often back up tapes are routinely purged, and contain guidance on when such automatic processes should be put on hold with respect to data when litigation can be reasonably anticipated.

Cornell University has shared through the EDUCAUSE resource page Guidelines for Preservation of Electronically Stored Information.

NB: The Electronic Discovery Amendments to the Federal Rules of Civil Procedure effective Dec. 1, 2006 affect the Following Rules:

Rule 16(b) (5) and (6) Pretrial Conferences; Scheduling Management

Rule 26 : General Provisions Governing Discovery; Duty of Disclosure

Rule 33(d) Interrogatories to Parties: Option to Produce Business Records

Rule 34 (a) and (b) Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and other Purposes

Rule 37(f) Failure to Make Disclosures; Electronically Stored Information and Good Faith

Rule 45 Subpoena Practice

Relevant Case Law

Zubulake v. UBS Warburg

In a series of decisions, the Southern District of New York has provided guidance in the area of "litigation holds" and document preservation. In Zubulake v. UBS, Laura Zubulake, an equities trader for UBS, filed an EEOC action against the company for gender discrimination. Upon notice of the action, UBS instructed all employees to retain any relevant information regarding Zubulake and the EEOC action, otherwise known as a "litigation hold," but the instruction did not specifically pertain to back-up tapes. She was fired not long after filing the action. Ms. Zubulake then filed suit in the Southern District of New York, claiming discrimination and retaliation. During discovery, Zubulake served UBS with a document request specifying that she was asking for all documents, including any electronic information. UBS complied by producing over 300 pages of documents, including 100 pages of emails from certain "key players" within the organization, but claimed that any search and production of emails on back-up tapes would be cost prohibitive. The court ordered production of back up tapes, at which point UBS halted routine deletion of the tapes. By this point, many were missing and relevant emails had been deleted. UBS was found liable for the destruction of the emails, even though in-house counsel instructed employees not to destroy them. The company was forced to pay costs of attorney's fees, depositions and re-depositions required by the late production, and the jury was given an adverse inference instruction with respect to the lost emails.

When does the duty to preserve begin? ZubulakeIV at page 6 discusses when the duty to preserve begins. The Court held that the duty to preserve began at the latest when Zubulake Filed her EEOC charge, but that in this case, since the relevant people at UBS anticipated litigation in April 2001, the duty to preserve evidence essentially began at that time.

What evidence must be preserved? While the potential defendant does not need to save every email or scrap of paper, the defendant must not destroy unique, relevant evidence that might be useful to an adversary. Generally the party is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request. (page 10 of Zubulake IV)

Questions and Answers

Q. What about a case that is brought in state rather than federal court?

A. See the Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information. These guidelines were approved in August 2006.



NACUANOTES Vol. 15 June 22, 2017: E-Discovery Update: E-Discovery under the Federal Rules of Civil Procedure

NACUANOTES Vol. 11, No. 10 - Preparing For E-Discovery, Revisited: Five Years Later April 23, 2013

St. Louis University Documents (Provided Courtesy of Kenneth E. Fleischmann, Senior Associate General Counsel)

The Sedona Conference See E-Discovery

updated 1-2-18