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

document rentention policies

[alatesystems]

We already have electronic document retention policies, and we do get rid of things on a regular basis. I don't really understand what this rule would be for, except to validate practices already in place at almost every major company.

The submitter makes it sound like it's horrible for the plaintiff, but would we really want to live in a world where we have to keep every single file forever? I think not.

Re:document rentention policies

[Spad]

As it stands, there's nothing to stop a company from doing exeactly the same with paper documentation; "Oops, it got shredded in the routine operations of my business...last night".

Re:How long

[ReggaeFire]

As pointed out above, this is no different then the rules governing retention policies for paper documents. For records management people this is a basic function of their job. What this means is that you have a regular cycle (a document "lifecycle") where a document is no longer needed for business use, and it is legal to destroy it. You cannot simply invent a lifecycle and destroy at will once a discovery process has begun (this is what Enron did, and a big reason we now have Sarbanes-Oaxley), but if you already have this automatic process in place (which a growing number of companies do for electronic records), this will keep the lawyers from claiming you are destroying evidence to willfully avoid prosecution (the same rules apply for electronic records as paper ones, you must keep certain records for x amount of years, etc.). This isn't groundbreaking, in fact it's pretty basic and surprising it didn't exist before.

Excellent

[Anonymous Coward]

Every cloud has a silver lining.

i see nothing wrong with this proposed rule

[awb131]

For instance, under HIPAA and other state insurance regulatory laws, my company is required to maintain all documentation related to a customer file for 7 years. Right now this constitutes about 2 million pieces of paper weighing approximately 14 tons and taking up about 1500 square feet of floor space in my office for filing cabinets. We go through things once a year and toss anything that's older than 7 years.

When we move to an electronic imaging system, everything will probably fit on to a couple of high-capacity disks. In 7 years, the cost of that amount of storage is probably going to be negligible, so there's no technical reason we couldn't keep things forever. But I'm still going to configure the document management system to toss anything older than 7 years. Why? Because 7 year old information is not useful. The only reason it's there is because of state/federal rules of evidence that require me to keep it around. It's only useful to someone who's suing me, and when those 7 years are up I'm glad to get rid of it.

One of the things that keeps people from modernizing their filing systems is the fear of losing this "protection," of being able to throw away old information. There's a fear that if you go electronic, it's always going to be "out there" somewhere and potentially a legal threat to you, even if you've done nothing (intentionally) wrong.

I for one support this rule. And if it seems like a good idea for our small company, imagine how it would seem if you're, say, Citibank.

This rule is obviously not designed to support policies of "oh, we're getting sued, so I'm going to throw out this particular subset of information related to the lawsuit and try to claim it's a standard practice," because any attorney worth the price of his suit would get me thrown in jail for destroying evidence.

Too Much STUFF!

[Hasai]

Y'know, judging from the submitter's slant on this, I would guess he's never had to maintain multi-gigabyte document repositories bursting at the seams with obsolete documents. Nor, I suspect, had to restore and rebuild five years worth of old email databases just to satisfy some little ambulance-chaser's fishing expedition.

Bah.

Submitter has no idea what he's talking about

[jizmonkey]

Clearly this "law student" has never worked at a firm involved in litigation. He's going to need a lot of luck getting that paper published.

Abuse of American electronic discovery rules is getting worse every year. Defragment your disk? That's a sanction. Copy files from an old computer to a new one? That's a sanction.

Seriously, the legal rules need to realize that asking for documents not normally accessible is extremely expensive and opens up possibilities for extortion. ("Looks like it will cost you three million dollars to restore and examine these tapes... Why don't we just settle the case for two?") Everything the Microsoft attorney said is true.

The judges know this, the attorneys know this, the companies know this. The submitter needs to get out in the real world and get his head out of his ass. There's not even an ideological basis for thinking the way he does. It's not like poor people benefit from these rules (who Democrats like to protect) or self-made rich people (who Republicans like to protect).