Business/Commercial Litigation:  New Electronic Discovery Rules in Effect

In December 2006, new provisions of the Federal Rules of Civil Procedure governing discovery of electronically stored information ("ESI") became effective.  Businesses are now under explicit obligations to manage, preserve and produce ESI -- which includes emails, graphs, charts, photographs, sound recordings, images and other data-compilations from which information can be obtained.  ESI further includes not only the electronic files themselves, but also the "metadata" relating to the files, reflecting information such as where on a computer the file is located, its size, who created the file, and when the file was created.  As a result of the new rules, businesses are well-advised to review their existing document control and retention policies and, if necessary, implement specific policies addressing the management and preservation of ESI.