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Everything You Ever Wanted to Know About Electronic Discovery


One of the hottest areas of information technology law is electronic, or “e” discovery. Why? The rules have changed.

If you are never going to be sued, sue anyone or even be tangentially related to a lawsuit, you may be safe in ignoring the new Federal Rules of Civil Procedure (FRCP) relating to ediscovery. For everyone else, however, ignoring the new rules is likely a painful and costly proposition. Unless you have a penchant for writing checks, losing your IT staff for months on end and non-stop tongue lashings from a federal judges, listen up.

Given the breadth and scope of the rule changes, I will devote one post to each general change in the FRCP relating to ediscovery. These changes include:

1. What is electronically stored information (ESI)
2. By the time you get sued, it is already too late
3. Preparing your game plan
4. Clawback
5. ESI Subpoena power
6. Safe Harbor
7. Implementing an ESI management system

These changes are still quite new. Companies are still working out bugs in implementing their best practices to address these changes. Our best practices, therefore, are not only untested in battle, but cannot address the nuances of every conceivable business. Take these best practices with at least three grains of salt. They will not work for everyone, and may not work for anyone. They may, however, provide a template upon which you can begin building an ediscovery policy for your own company; a policy which might just end up saving your job.

If anyone has any “best practices” suggestions they would like to share, I would encourage you to share your comments to these posts.

Brett Trout

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