Preserving the Duty to Preserve: The Increasing Vulnerability of Electronic Information
70 Pages Posted: 8 Aug 2006
This article addresses the increasing vulnerability of electronic information, particularly in light of proposed electronic discovery rules, which are likely to go into effect December 1, 2006. Under the new Federal Rules of Civil Procedure, electronically stored information deemed "inaccessible" is subject to a reduced discovery obligation, and a new safe harbor excuses the destruction of electronic information pursuant to a document retention policy.
As organizational information migrates to an electronic form, legal disputes involving such topics as employment discrimination, product liability, and securities fraud, will rest upon evidence in an increasingly fragile state. The extent to which crucial information such as email and metadata is accessible is entirely in the hands of its keepers. As developing case law and the Federal Rules of Civil Procedure combine to send the message that organizations should not be burdened with the need to preserve or retrieve inaccessible electronic data, electronically stored information may gravitate towards retention policies that insure an organizational "Alzheimer's."
In response to the growing vulnerability of electronic information, the article suggests ways that litigants and the courts can and should take a proactive role in preserving the duty to preserve electronic evidence in anticipation of litigation.
Keywords: electronic discovery, e-discovery, duty to preserve evidence, spoliation, sanctions
JEL Classification: K41
Suggested Citation: Suggested Citation