New Email Rules Effective Friday

An anonymous reader writes "As of today [Friday], certain U.S. companies will need to keep track of all the e-mails, instant messages and other electronic documents generated by their employees, in accordance with new federal rules. In April the Supreme Court began requiring companies and other entities involved in federal litigation to produce 'electronically stored information' as part of the discovery process of a trial." From the article: "Under the new rules, an information technology employee who routinely copies over a backup computer tape could be committing the equivalent of 'virtual shredding,' said Alvin F. Lindsay, a partner at Hogan & Hartson LLP and expert on technology and litigation. 'There are hundreds of "e-discovery vendors" and these businesses raked in approximately $1.6 billion in 2006, [James Wright, director of electronic discovery at Halliburton Co.] said. .'"

Comments

What's next?

[Salvance]

What happens for companies that don't host their own e-mail, particularly smaller companies?

In order to save money, my company hosts our website and e-mail on a shared server. E-mails are downloaded via POP3 and immediately deleted from the server (each account can only hold 20MB online at one time). Most people then delete their e-mails after reading, so we have absolutely no way to retrieve this data.

This doesn't seem to impact my company, but at some point I fear regulators will start requiring more stringent data retention processes (among other IT tech processes). SOX has already hurt large companies, hopefully they don't start pushing some its fundamentals down to the little (non-public) folks.

Re:What's next?

[MoralHazard]

companies that don't host their own e-mail, particularly smaller companies

This is a no-brainer, right? If you're the kind of company that is subject to these retention rules, having a shared email server that immediately deletes DL'd messages, with no user policy
at the local level, either, is illegal. You'd have to immediately move your email in-house and implement appropriate policies, or find a 3rd-party that can handle it, or some mixture.

If you're not the kind of company that is subject to these rules, who the fuck cares?

If you don't already know that your company is subject to these rules, and it turns out you do need to follow them, fire your in-house counsel because they're incompetent.

Misleading

[calbanese]

Under the new rules, an information technology employee who routinely copies over a backup computer tape could be committing the equivalent of 'virtual shredding.

This is a bit misleading. Its only "virtual shredding" if you don't keep the records around for a reasonable period (either by statutory requirements or insutry standards) or if you have notice of litigation in which the evidence is relevant, and you continue to shred.

Thats why there is a document retention policy safe harbor in the rules themselves.

As amended, Rule 37 creates a "safe harbor," protecting a party from sanctions for failure to produce electronically stored information as long as it took reasonable steps to preserve electronically stored information when it knew or should have known such information was discoverable, or the failure results from loss of information during routine operation of such party's electronic information system.

FWIW, lawyers, even the "technology experts" don't seem to understand technology as well as someone who came through IT before becoming a lawyer.

(disclaimer: IT guy-turned-lawyer, so I always think I know more than "pure lawyers" when it comes to tech).

The amendments

[jwaters]

Since the linked article is light on information, I found the actual amendments (note: PDF)

Links to the rules

[davidwr]

This link goes into a bit more detail than the article in the main /. story.

The pertinent rules appear to be the Federal Rules of Civil Procedure, specifically Rule 16 dealing with pretrial scheduling and Rule 26(f) relating to discovery and disclosure.

Cornell University has these rules online. They might be outdated already.
Rule 16
Rule 26

Wikipedia also has a writeup on the Federal Rules of Civil Procedure.

Do a search for rules on electronic discovery for more commentary.