In an effort to clarify and combat continued electronic discovery failures, one of the Judicial Conference's Advisory Committees' amendments, deleted the term "data compilations" -- a vague term introduced to the federal rules as a means of addressing changing technology, from Rule 26(a)(1)(B) because, "The term "data compilations" is deleted as unnecessary because it is a subset of both documents and electronically stored information." The proposed Federal Rules of Civil Procedure (FRCP) Rule 34(a), lists data compilations as a subset of documents and "electronically stored information (ESI)" subject to production. "ESI" re-defines electronic evidence, encompassing computer-based information formats and incorporating flexibility for future technological changes and developments. Skirting discovery of ESI, substituting inexpensive electronic storage for Records Management, and scorched-earth retention policies are avoidance practices headed for extinction. Aspects of Discovery are evolving, however, even with the imminent implementation of the amended Federal Rules (December 1, 2006), the core-essence of discovery remains unmarred.

The catalysts of discovery's evolution stem from the ever-expanding sources, locations, and formats of discoverable material. In the past, you could control the majority of documents easily; they were stored in a few definable locations and existed in one simple format (paper).

The information technology (IT) revolution fostered the birth of electronic evidence discovery, opening document control to the masses, and scattering electronic-evidence across countless locations and diverse electronic formats. Company file storage systems expand exponentially and e-mail systems have become document repositories, a function never accounted for by their designers. Information resides in: databases, individual workstations, portable devices, and even employee home computers. Company policies do little to deter individuals from circumventing procedures. Case in point: The Veteran's Administration is mailing approximately 26.5 million letters to veterans informing them of potential identify-theft. Why? A VA employee violating Administration policy, taking home a laptop containing veterans' social security numbers and medical information, had his home burglarized and the portable device stolen, so much for policy enforcement.

Communication

Technology introduces a new, evolving, and complex level into e-discovery. Regardless, companies are responsible for communicating, coordinating, and controlling the chaos. A significant number of court opinions address the preservation and legal hold duties of a company, and recently counsel; alert every individual and entity of their preservation and retention obligations (National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 57 (N.D. Cal. 1987); Procter & Gamble v. Haugen (D. Utah 1998) 179 F.R.D. 622; Prudential Ins. Co. of America Sales Practices Litigation, supra, 169 F.R.D. at 598; Linnen v. A.H. Robins Company, Inc., supra, 10 Mass.L.Rptr. at 189; United States v. Koch Industries Inc., supra, 197 F.R.D. at 463; Old Banc One Shareholders Sec. Litig., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005)). In the prominent UBS Warburg v. Zubalake, Judge Scheindlin issued an opinion, addressing communication breakdown and compliance with discovery obligations. While her honor acknowledged UBS's counsel basically met their obligation when communicating the client's duty to preserve digital data, counsel's flaw was failing to communicate with the client's IT personnel. Additionally, she indicated a statement buried in an engagement letter might not meet counsel's duty of informing clients of preservation and retention obligations.

Direct communication with every source and custodian of relevant information is crucial and establishes a solid and defensible e-discovery foundation. Direct communication between all key players caught up in active litigation or a government investigation is not a suggestion; courts demand established preservation protocols: initializing, monitoring, and enforcing information preservation and clear legal hold communication. (For more on pre-trial communication, see the sidebar Are You Prepared for the Pre-Trial Conference?) Most parties involved in a litigation or government investigation have experienced or read about situations where executive management insisted they have collected and provided all responsive documents (paper and ESI); only to have vital (responsive) documents materialize at a later date. Digital data intensifies this scenario a thousand-fold. Management or their agents miss responsive documents for assorted rationalizations:

1. Unaware it existed

2. Cursory searches

3. Withheld existence of the legal action from pertinent employees, in a vain attempt to cover up the issue fearing: public scrutiny, shareholder wraith, and economic impact on the company

4. Inadequate communication resulting in loss or destruction of ESI. Actions (and non-actions) negating counsels' due diligence efforts, damaging and discrediting the case in the eyes of the court