New amendments to the Federal Rules of Civil Procedure, effective December 1, 2006, require companies to preserve potential electronic evidence in the event that they are sued or in the event they may be sued.
Rule 16(b) - This rule includes provisions for disclosure or discovery of electronically stored information and permits the parties to reach agreements for asserting claims of privilege or protection as trial preparation material after production.
Rule 26 - This rule addresses initial disclosure, scope and limits of e-discovery, as well as the limit of claims of privilege on the pre-trial materials. Any parties involved must produce electronically-stored information (ESI) that is "relevant, not privileged, and reasonably accessible." The rule recognizes that some production of ESI may be excessively expensive or burdensome.
Rule 33(d) - This rule establishes that the responding party must allow the requesting party reasonable opportunity to examine, audit of inspect such records and make copies, compilations, abstracts or summaries.
Rule 37(f) - This rule declares that a court may not impose sanctions on a company for failing to provide ESI lost as a result of the routine, good faith operation of an electronic information system. It is a "safe harbor" that is meant to give companies limited protection during the critical time when information relevant to pending or threatened litigation needs to be preserved. The key to protection lies in the company's creation, implementation and management of its records management policy. A records management policy allows the company to manage its assets in an efficient and cost-effective manner by preserving business critical information and destroying records that are longer of any use. In implementing this policy, a company defines the types of records that need to be maintained as well as the types of records that can be destroyed.
Rule 45 - This rule adds that a subpoena can command each person involved to attend and give testimony, or to produce and permit inspection, copying, testing, or sampling of ESI. In addition, a subpoena may specify the form in which ESI is to be produced. Subpoenas may be served not only to inspect materials but to copy, test or sample those materials.
Companies need to know what electronic information they are storing, and where it is. They need policies in place governing the management of electronic information. They need to follow these policies, and they need to be able to prove compliance.
 FACTA |
Land Ban Act of 1994 |
| Federal Rules of Civil Procedure |
RCRA |
| Gramm-Leach-Bliley Act |
Safe Harbor Act |
| HIPAA |
Sarbanes-Oxley Act |
| IRS Revenue Procedure 98-25 |
SEC Regulation S-P |
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