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E-discovery As a Litigation Weapon?
The proposed amendments to the Federal Rules of Civil Procedure (FRCP) make clear what most companies engaged in complex litigation are already keenly aware of: that 'electronically stored information' is not only discoverable but is essential to the discovery process (See, www.uscourts.gov/rules/newrules6.html#cv0804).
The new rules set forth a series of actions related to e-discovery that both parties must abide by or risk the imposition of sanctions. While the exact impact of these new rules, set to become effective on Dec. 1, is unclear, it is safe to say that the millions of dollars spent on e-discovery last year are sure to increase as companies and their counsel struggle to adapt their practices.
One area where the impact of the new rules can already be seen is on the plaintiffs' side of the bar. Plaintiffs' firms, emboldened by recent case law and in anticipation of the new rules, are becoming more aggressive in requesting electronic data during the discovery phase. This adds an additional element of risk to the legal process, especially for those companies not adequately prepared. The good news is that some advance planning can help minimize a company's exposure.
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