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Rules add to records burden

U.S. companies will need to know more about where they store e-mails, instant messages and other electronic documents generated by their employees in the event they are sued, thanks to changes in federal rules that took effect Friday, legal experts say.

The changes, approved by the Supreme Court's administrative arm in April after a five-year review, require companies and other parties involved in federal litigation to produce "electronically stored information" as part of discovery, the process by which both sides share evidence before a trial.

Federal and state courts have increasingly been requiring the production of such evidence in individual cases. The new rules clarify that the data will be required in federal cases.

Under the new rules, an information technology employee who routinely copies over a backup computer tape could be committing "virtual shredding" once a lawsuit is filed, said attorney Alvin F. Lindsay, an expert on technology and litigation.

Companies still could routinely purge their archives if the data aren't relevant to cases companies have pending or expect to face, though specific sectors such as financial services remain governed by other data-retention rules.

The new rules make it more important for companies to know what electronic information they have and where, especially because of a provision that requires lawyers to provide information much earlier than before on where their clients' data are stored and how accessible they are.

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