New rules governing electronic discovery of documents in civil litigation that were scheduled to take effect on Dec. 1 could go into effect three months ahead of time, or even earlier in some states.
Depending on which state you're in, those rules could go into effect Sept. 1 – or may already be in effect, according to Tom Allman, a senior counsel with Mayer, Brown, Rowe & Maw LLP in Chicago and one of the prime movers behind getting the rules changed in the first place.
The new rules (see: New e-discovery rules go into effect in December) require that when two companies are involved in civil litigation, they must meet within 30 days of the filing of the lawsuit to decide how to handle electronic data, including which records are to be shared and in which electronic format, as well as on a definition for "accessible data." On the federal level, those rules are scheduled to take effect on Dec. 1, unless Congress passes legislation to do otherwise, which nobody expects it to do, Allman said.
The state of New Jersey ordered on July 27 that it would adopt the rules in their entirety, effective Sept. 1. Several states, including California, Maryland and Texas, have either adopted some of the new rules or have had e-discovery rules of their own already, said Allman. In addition, the rules are being considered in about 10 other states, he said.
Allman advised users who are setting up or changing their e-discovery plans to not make rash decisions, such as eliminating as much data as possible to help reduce potential future liability.
"The fact that you might save something you regret is balanced by the fact that you might save something you need," he said. "You'd better base your decision on neutral grounds, and not because you're afraid something's going to bite you down the road."
Such decisions might also be different based on employee classification, Allman said. For example, it is more important to save all documents from scientists in a research and development division of a chemical company – where they might be needed later to justify a patent – than for the sales force, he said.
And organizations that are panicking because their instant messaging system doesn't allow them to save messages may not need to worry, Allman said. While there are no specific cases dealing with instant messaging, it was mentioned in one case in the context of material considered "ephemeral" and thus not required to be saved. "There is a substantial argument that you are not penalized for not instituting a system that captured all the past messages," Allman said.