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On December 1, 2006, the new Federal Rules of Civil Procedure regarding electronic discovery (e-discovery) took effect, significantly expanding the responsibilities of employers in litigation relating to preserving and accessing relevant electronically stored information. Electronic information may consist of, but is not limited to, electronic documents, e-mail, correspondence, images and graphics, deleted files, spreadsheets, databases, system usage logs, Internet/Intranet history and cache files, as well as user information such as contact lists and calendars, information located on the employer’s servers, mainframes, network file systems, workstations, laptop computers, personal digital assistants, personal home computers, voice mail, cell phones, backup media and other media devices.
The new e-discovery rules will require changes for most employers faced with litigation or with the “reasonable anticipation” that a legal claim (e.g., a charge of employment discrimination) may turn into litigation. I strongly recommend that all employers consider establishing Standard Operating Procedures (SOPs) well in advance. For example:
- Meet with the Information Technology (IT) Department and advise them of e-discovery requirements before there is a threat of litigation.
- Understand your computer system, network infrastructure, backup system and rotation of tapes; document retention and destruction policies; software packages, both at the network level and on individual computers; any external media devices used for electronically stored information (ESI), and which information is readily accessible.
- Designate the individual responsible for implementation of the SOP, specifically, the “litigation hold” procedure.
- Institute an in-house training program to caution employees about the new e-discovery rules and that inappropriate e-mails, correspondence and other documents can be discovered and produced in litigation. For example, employees should be advised that e-mails should not be created if the employee would be unwilling to read that e-mail in a court room.
- Conduct a mock discovery request to verify that the SOP works.
The first step for employers in establishing an SOP is to identify all media containing electronically stored information, and to determine the employer’s document retention and destruction policies and practices for that information.
If you have any questions about this information or the new e-discovery rules, or if we can be of assistance to you in developing your own standard operating procedure, contact Tom Krukowski at (414) 988-8400 or by e-mail at tpk@kclegal.com.
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