On December 1, 2006, amendments to the Federal Rules of Civil Procedure went into effect regarding “electronically stored information.” The amendments require that electronic information must be treated the same as paper information and produced along with paper documents regardless of the size or sophistication of the producing party. Attorneys and their clients must assess how the electronic information is stored, how to produce it and what is relevant and responsive. This will likely require the assistance of in-house information technology (IT) personnel along with counsel.

One difficult issue regarding the new electronic discovery rules is accessibility of the electronic information and the cost/benefit of production.

As a result of the 2006 amendments, companies should consider updating their written policies regarding the retention and destruction of documents and procedures in place to preserve potentially relevant documents, now to include electronic information, once litigation is likely. Failure to do so could result in sanctions and/or spoliation charges. It is expected that the individual State Courts will eventually adopt their own rules concerning electronic information similar to the Federal Rules.