Electronic Discovery - Be Scared ... Be Very, VERY Scared!

As many of you may know, new amendments to the Federal Rules of Civil Procedure took effect on December 1, 2006, which require parties involved in Federal litigation to produce "electronically stored information" (e.g., e-mails, instant messages and the like) as part of the discovery process. I think it's likely that that most states, including New York, will eventually pass amendments to their civil practice laws which mirror the Federal Rules.

This is pretty scary stuff for even experienced attorneys. In addition to the normal discovery headaches involving paper documents, attorneys and their clients now must be concerned about issues such as electronic document retention/destruction policies and their enforcement, electronic inventories, storage methods, authentication, spoilation, back-up, and security.

It's bad enough having to plow through the voluminous paper documents that many clients maintain. Now, attorneys may have to wend their way through hundreds, if not thousands of e-mails and other items created and/or stored on each of the client's computers and portable media to ensure compliance with the Federal Rules. It's a veritable nightmare! Then there are the questions to which few answers exist at this early stage. Here are a couple for you to chew on ... Could purging, erasing or copying over of back-up data, even if performed in good faith, constitute virtual shredding once litigation has commenced? Is business related e-mail, sent from the workplace through an employee's personal e-mail account, subject to disclosure? I'm getting nauseous just thinking about it. Where's the Pepto when you need it?

Electronic discovery has arrived. Its stealth and expansive scope may broadside many an unwary practitioner. Be very, VERY scared, but most of all, be careful!