Education Law Publications

The firm publishes a monthly "Issue of the Month" on current issues or matters of interest in the education law area.

If you want more information about our education law practice or a copy of any of our articles, contact David Duff at dduff@ddtwb.com

SCHOOL LAW
“ISSUE OF THE MONTH”
March 2007

Before You Delete That Email…Read This!
New Federal eDiscovery Rules In Effect

In today’s technology-driven workplace, computers are essential and email is one of the primary means of communication.  While clearing your inbox may relieve stress and increase productivity, one must think twice before deleting emails or any other information that now may be subject to discovery in litigation.  The litigation discovery process involves the formal exchange of information between the parties to a lawsuit.

On December 1, 2006, amendments to the Federal Rules of Civil Procedure relating to discovery of electronically stored information (ESI) went into effect.  South Carolina’s Federal Rules of Court also were amended to reflect these changes. The new rules have important consequences for school districts involved in federal lawsuits and in many cases will require that copies of staff emails, voice mails, and even instant messages, be provided to other parties in a lawsuit.  The main goal of the new rules is to give direction and clarification as to how ESI is handled during litigation discovery.

1.  Definition of ESI - ESI encompasses any information that can be stored electronically.  Examples include:

Current and future ESI relevant to a pending or expected lawsuit should never be deleted.

2.  Format of requested information - A requesting party may identify the format in which it prefers that ESI be produced.  However, a party producing information does not have to do so in a format it lacks the technology to handle.  The new rules require the parties to reach agreement on the form of production of ESI.

3.  Burden of producing ESI - The new rules distinguish between ESI that is reasonably accessible and ESI that is not due to undue burden or cost.  A party may petition the court to compel production of ESI that is not reasonably accessible, but only if good cause to do so can be shown.

4.  Safe harbor - The recent amendments provide that a court may not normally impose sanctions on a party for failing to provide ESI lost as a result of routine operation of an electronic information system.  In such cases, courts are not likely to impose sanctions against a party who is unable to produce requested ESI as long as good-faith efforts have been made to retrieve and provide the information.

What does this mean for your District?

Because the amount of ESI will only grow larger, it is important for school districts to analyze the current state of district computer filing systems.  Steps must be taken to ensure that an effective system of preserving and retrieving ESI is in place.

Additionally, guidelines for employee communications should be put in place and training provided to assure that employees know what information must be saved and what may be deleted.   It is important to now recognize that ESI must be secured with the same care and attentiveness as other business documents.

The new rules are currently in effect only for lawsuits in federal courts. However, State Rules of Court could be amended in the future to apply the same ESI discovery rules to cases in South Carolina state courts. Thus, it is a responsible and precautionary measure to protect all relevant ESI in the event it is subject to discovery in a state case at a later date.

The amended Rules may be accessed at http://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf.  For questions or assistance with ESI retention issues, or any other matter, please contact Duff, White & Turner, LLC at 1-800-639-1677.

Past Issues of the Month may be accessed at www.ddtwb.com