Policy Workbook: E-Discovery: Page 6 of 7

» Running the business efficiently should always remain the top priority; any e-discovery solution must focus on making the discovery process easier rather than trying to change the way a company operates.

In some cases, policy building can be simplified by using a best-practices template. This isn't one of those times. We spoke with six attorneys regarding e-discovery and the only thing they all agreed on is that each case is different and that it's dangerous to overgeneralize.

Changing The E-discovery Rules

Although local jurisdictions have the authority to impose their own rules regarding legal discovery, the Federal Rules of Civil Procedure remains the gold standard for managing the process at the national level. Like most government documents, it's long, complex and subject to change on a regular basis. In fact, several modifications will become active in December. These are clarifications rather than hard changes to the e-discovery process and reflect the legal system's growing awareness of the challenges to maintain electronic data systems.

Changes to Rule 26 involve limits to the scope of a discovery request, and may let parties challenge a request for data if fulfilling it would cause "undue burden or cost." It also addresses some of the concerns surrounding protected or privileged information. But perhaps the biggest addition from IT's perspective is Rule 37(f), which states, "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." This amounts to a "safe harbor" clause that offers limited protections for a company unable to provide requested information, if the cause was beyond its control and appropriate procedures were in place.