I heard Clark Howard talking about this on Friday, and on Friday, a little icon that said “Track It!” popped up briefly on my work computer, but I would like some understanding of what these new regulations mean.
I do receive some personal e-mail at work. My sister and my daughter e-mail me, and occasionally friends will pass along some cute non-work stuff. I think that’s pretty standard with anyone that has internet access at work.
We have not received an official announcement on this new policy, but we do have a company meeting later this month, so maybe it will be explained.
From what I can tell of the article, it’s designed to keep any info available should the company be involved in a lawsuit. I’m getting a bit paranoid…I don’t want to get into trouble or get the company into trouble just because I may receive and/or pass on some non-work related product. I also access my Yahoo! account from my work computer. Would those e-mails also be subject to the regulation because I accessed it from my work computer, or is it just what goes and comes from my work e-mail?
You could have posted this in GQ, but since we’re in IMHO, I’ll opinionize all over. There is some serious misinformation out there regarding the new federal e-discovery rules, and I invite other civil litigators to weigh in (Random and Gfactor at a minimum; I think maybe pravnik too). (And how annoying the media is when they choose to run stories about things they don’t understand!)
First, I am not your lawyer, nor is what follows legal advice. Do not rely on it, but instead look to your employer’s attorneys to guide you in this matter. I’ll start with some background on what the new rules are, and then talk about your questions.
The Federal Rules of Civil Procedure govern the procedures in a case filed in federal court. You can find the rules here. Recently, Rule 16 was amended. Rule 16, in federal court, requires attorneys to meet soon after the case is filed and hammer out how the case will progress. The amendment to the rule explicitly requires attorneys to discuss “provisions for disclosure or discovery of electronically stored information,” which was not explicitly required before. FRCP 16(b)(5).
What is “discovery”? It is the process by which the parties exchange information about the case. What are the limits of discovery?
In other words, the information that is exchanged must be relevant to what the lawsuit is about. If Acme Corporation sued Widget, Inc. for failure to provide necessary parts for a rocket (i.e., breach of contract), what Widget serves in its employee lunch room is not relevant to that claim, so Acme couldn’t “discover” that information.
Under the old rules, parties also were required to make “initial disclosures” of a series of information, before anyone asked them to do it. (In state court, by contrast, we only have to disclose information when someone makes an appropriate discovery request for it.) Under the amendment to Rule 26, parties must “a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.” FRCP 26 (a)(1)(B) (emphasis added). Now, parties have to disclose not just hard copies, but electronic documents as well.
When producing documents, the amended rules now require some consideration of electronically stored documents:
That’s what the article is talking about. These rules were amended after courts spent a signifcant amount of time considering how electronic information should be produced in particular litigations. There is a ton of background on this, which I’m happy to go into if people are interested; it relates to the Zubulake case and the Sedona Conference on e-discovery.
How does this affect you? Frankly, it shouldn’t or doesn’t. It does affect your company, in that your company should make sure that its document retention policy is known to employees and followed. And if your company is sued, it affects how your company’s attorneys must act quickly to learn how your company holds its information, and to put a litigation hold on all electronic information.
E-discovery is one of the most important and challenging areas of the law for attorneys; it requires us (who tend to be soft humanities types) to learn and understand computers. But frankly, given how much email we all use, and how computer dependent we are, this is an area that attorneys need to learn.
You want to know how it affects your personal email. You should be aware that your company likely tracks your internet usage, and also stores on backup tapes your work email. So the personal emails that you get – even if you immediately delete them – are stored, possibly for years.
Are your personal emails relevant to the lawsuit at issue? Don’t know. Maybe. Depends on what the lawsuit is about. If there’s no pending or threatened lawsuit, then your emails aren’t at issue.
I hope that this helps a bit – the media is playing these civil procedure rule amendments up as if they’re a change in how companies need to do business. They really aren’t, except that companies – even ones that aren’t being sued – need to be more aware about how they store electronic information, and lawyers need to be much more vigilant about e-discovery.
Thank you so much, Campion. That was extremely helpful. Regarding my internet usage…I believe the company knows I visit Yahoo!, but they don’t keep track of the e-mails I send and receive from that account, correct?
My company would be able to tell that you are visiting mail.yahoo.com, for instance, but not be able to track emails to/from that web page. I have no idea if this is the exception or the rule. We are certainly able to track, filter and archive company email.
Thanks. So what would this mean for a sole proprietor, no employee business (e.g., a private social work practice)? Could one never delete one’s e-mails?
One certainly could choose never to delete emails. That would be a horrifically inefficient way to run a business, in my opinion.
Remember that these new rules govern litigation (and, although they’re silent on this point, arguably pre-litigation, when a person reasonably knows or should know that she’s about to get involved in litigation. (I reiterate here my prior disclaimer: I’m not your lawyer, not licensed in your jurisdiction, and this is not legal advice, much less reliable legal advice.)
I cannot reiterate enough that these “new rules” really have no effect whatsoever on how a company should run its business, other than what I’ve said before: everyone, including every company, should know how its information is held. For example, I know that I have electronic information on my cell phone; my blackberry; my home desktop; my work hard drive; and my work server (although I’m fuzzy on precisely where in the US that server is located). If I were sued in federal court, my lawyer would need to ask me how my information is held, so that she could then figure out the best and most efficient way to produce that information.
This is the long way of getting to your question: I don’t know your situation, but these “new rules” don’t generally have any effect on whether or not you can delete email. You had the same right/ability to delete email on November 30, before the rules went into effect, as you did on December 1. If you were in litigation or pre-litigation on November 30, your lawyer darn well ought to have already put a “litigation hold” on your electronic information. In other words, your lawyer already ought to have talked to you about these issues, and made sure you weren’t deleting something you shouldn’t. The rules simply formalized what already ought to have been happening.
I recognize that this is likely an unsatisfactory answer. But without knowing more, I can’t tell you whether you should save all your emails. All I can say is that the amended rules shouldn’t have any impact on your decision regarding emails.
Nice work Campion and Random. I hadn’t actually looked at the rule. I don’t get into federal court much these days. Yet, somehow I knew that when I did look at it, it would look a lot like it does, and that all of the chicken littles would be uninformed–I’m pretty sure I heard self-proclaimed legal expert Sean Hannity say that this new statute, approved by the Supreme Court, would require businesses to keep digital records forever . . .
That’s really pretty sad.
It doesn’t affect how companies do business or keep records at all–it affects one part of civil litigation in federal court. It’s also not a statute. It’s a court rule.
You have to comply with existing laws and rules about recordkeeping. No additional recordkeeping requirments are imposed by this rule. Sometimes you can get in trouble for deleting records–paper or computer–if you do it when you expect (or should expect) to be sued, or while you are being sued. If you expect to be sued, talk to a lawyer in your jurisdiction before deleting files or computer records.