Proposed Federal Rules On E-Document Destruction

runner345 writes "The Federal Advisory Committee on Civil Procedure is evaluating a series of 'e-discovery' rules that will change the way litigation handles electronically stored information for the federal courts. Included in this is proposed Fed. R. Civ. P. 37 which would exempt parties from sanctions for electronic evidence destroyed in a 'routine operation of the party's electronic information system.' Microsoft and other technology heavy-hitters have strongly backed this safe harbor because it judicially validates electronic document retention policies (perhaps the most effective Orwellian misnomer for outright document destruction). If you thought it was hard to get incriminating documents from the tech industry now, think about what this rule will do to a plaintiff's chances. You can get the proposed rule here (when their site works) and read what Microsoft and Intel have to say about it here. You can also read my law school thesis on the topic (still only in draft)."

Comments

some of us do, you insensitive clod!

[RMH101]

i work in big pharma, and for a lot of our systems we *do* have to do this. legally, we've got to keep data for clinical trials for *twenty five years* after the patentable lifetime of a drug. not only that, but we've got to figure out a way of archiving complete systems for that long. suffice to say, it's really, *really* expensive...

Context of the proposed rule: what's required now

[Brian See]

I think some of this discussion is lacking in context.

First, if you destroy evidence after the lawsuit gets filed (or when you enter the grey zone of when you "reasonably anticipate litigation"), you have just committed spoliation of evidence. While this makes intuitive sense - the rule prohibits a defendant from having a "shredding party" the day after a lawsuit gets filed - it becomes problematic as definitions of what constitutes "evidence" expand.

Active emails? Check. Files on network servers? Check.

Backup tapes from last night's cycle? OOPS. Yes, several court decisions /orders have taken parties to task for failing to suspend routine overwriting of backup tapes. Taken to the extreme, this means that once you get sued, you can't overwrite any of your backup tapes.

Updating databases that might result in some data (i.e., last accessed, last modified) being modified? Uhoh, better take a snapshot of that database.

Are your server logs at issue? Uhoh, better suspend rotation of your server logs.

Hey, when you TURN ON your desktop, aren't you overwriting some cache space and slack space, that might make recovery of deleted files impossible? Guess what? If the other side wants to do a forensic examination of your machines, you can't even continue using them without taking a bit-by-bit image.

And by the way -- if you miss any bit of this data, you get sanctioned. Monetary sanctions, or an adverse inference ("we don't know what was on that tape that was destroyed, but you can ASSUME it was bad!"), or even a default judgment. Yes, electronic discovery can turn into a game of "gotcha".

Think how expensive this is for a small shop with just a handful of machines. And then think what's involved for a nationwide company with, say, 80 far-flung locations and company databases.

See the problem?

The "safe harbor" to Rule 37 says that you don't sanctioned for failure to preserve information lost from ROUTINE operation of a system UNLESS THE LOSS WAS INTENTIONAL OR RECKLESS. The "reckless" hole is very large, admittedly. But the rule attempts to bring some sanity to some of the broad-reaching data preservation games being played today.

Also, note that a court can order a party to take steps above and beyond what the proposed Rule 37 requires.