Producing IMs In Court

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Companies better start keeping closer tabs on instant messages in case they end up in court someday. The new guidelines, called the Federal Rules of Civil Procedure, have expanded the types of electronically information that you could be required to come up with if you are ever sued.

Companies that do not keep close tabs on PDAs, instant message conversations and other forms of electronic data may soon be in for a nasty surprise, should they find themselves in court. As of December 1, 2006, new guidelines, called the Federal Rules of Civil Procedure, go into effect. The rules, set by the U.S. Supreme Court, expand the types of electronically stored information that companies could be required to produce in a lawsuit.
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FWIW, the Federal Rules were amended and those amendments took effect on Dec 1, 2006. The main change in those rules dealt with changes in discovery to take into account electronically stored information. The Federal Rules of Civil Procedure are not new, nor are they guidelines.

Many courts had allowed discovery of electronically stored information under the old rules on a discretionary basis. (search for zubulake to get some information). Amending the rules standardizes those practices.

This may be a significant change in the practice of law, specifically the way IT departments work within legal guidelines. In the past, the likely main goal of an IT department was information redundancy. With these changes and the ease of discovery from any potential adversary, IT will need to likely balance providing redundancy with minimizing the amount of data that is unnecessary to save.

However, this is only my opinion, and I won't take the bar until July.
 
PurduEE said:
However, this is only my opinion, and I won't take the bar until July.
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Nice to see another law student chime in.

From what I have read, these are just revisions to FRCP 26(b)(2) and FRCP 37(f). I argee with the above poster that the title is misleading in that the FRCP (Federal Rules of Civil Procedure) have been around for quite a long time and are not new, merely revised.
 
Not being totally familiar with all IT related laws, under what circumstances do these laws apply to small business clients if at all?
 
I'm not a law student, but it strikes me that the changes will put a heavy burdeon on corporate IT departments. Keeping track of email is fairly easy. Internal IM traffic is probably fairly easy (I'm less certain about external IM clients and/or web based clients). It's not that I don't think the technology exists, but it seems like they'd have to store an enormous amount of data that they'd normally not save.

I'm not sure what the requirements are with respect to flash drives and PDAs. Does this mean they'll need to have employees submit PDAs for scanning every day so that they can know what was done on them? Will they have to make sure that there's software on the PDAs to log anything that's done on them?

There's not much info in the article, but it seems like a heavy burdeon on IT. Saving all IMs is kinda like saying you need to keep track of every postit that's been used in the office. I take that back, it's more like saying the company needs to record every phone call, even if it's a personal call to the spouse and save it for years, incase of a future lawsuit.

This law seems bad for IT, employees and probably people in general, because if this info is stored, it's only a matter of time before the feds try to figure out a way to get their hands on it in the name security, crime stoping or some other red herring.
 
Kind of ridiculous these days. I work for healthcare insurance and we have to log all instant messaging, emails, and any files we maintain. Its getting ridiculous you have to save emails that you tell a co-worker you are going to lunch.
 
nilepez said:
I'm not sure what the requirements are with respect to flash drives and PDAs. Does this mean they'll need to have employees submit PDAs for scanning every day so that they can know what was done on them? Will they have to make sure that there's software on the PDAs to log anything that's done on them?
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We keep 4 years of e-mails, surfing, and now popular IM's logged. But i agree, how do i track whats being looked at with one of my Axims on a free WiFi spot? Thats like telling me i need to keep all our employee cell phones tapped as well.
 
You know, it would be COMEDY GOLD to see my IMs introduced into a court of law :D

Your honor, we would like to introduce the defendants comments AFTER the "I farted and wish you were here for it" post and BEFORE the links to "www.midgetsandgoats.com" as evidence.
 
molson3530 said:
I guess that it depends on the state, this is federal law...
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The problem is that states enact their procedural rules based on what the federal courts are doing. Anyone involved in any significant litigation will be dealing with these changes.

In order to have to turn over information through discovery, there are certain requirements that must be met, as I understand. I am not a lawyer, and this is not legal advice. I represent only myself, not my employer.

For instance, you might be given an interrogatory as follows: "During the period defined between Mar. 31, 2001 and June 4, 2002 please list all communications Plaintiff had regarding the incident in question, including but not limited to phone calls, electronic mail messages, instant messages, and the like." I would also likely ask you to produce documents responsive to this question. To respond, you'd need to give me documents and describe what they are, unless one of the requirements is not met.

1. The interrogatory must be reasonably calculated to lead to the discovery of relevant evidence. This means that if this is a case about a traffic accident, I can't ask you about lying on your income taxes, or looking at questionable websites, unless I can link that to the accident.

2. The request must not create an undue burden - This is a balancing test, but suffice it to say that if it costs me $2M to find some data from backup tapes, but the suit is one for $40, the request to get that data will likely be an undue burden. In terms of electronic information, there is also a standard of reasonable accessibility that comes into play here. Some data is accessible, some is not reasonably accessible because of the cost involved in getting ahold of it. If data is not reasonably accessible, it may still be discoverable, but the party asking for the information gets to pay for it, rather than the party in possession.

3. Documents provided need only be those documents responsive to the question asked. Again, this means that if you have text messages, etc. that relate to websites you've visited, unless they are responsive to my question, they don't come in.

4. Documents are provided as kept in the course of business. If you don't keep records, you don't have to produce them, because you don't have them. However, I'd guess that all companies are required to keep certain amounts of documents for certain times. The SEC, for instance, requires a certain amount of years of e-mail stored.

#4 is the issue I find most interesting. In the past, if you were in IT, you would likely try to keep most everything just in case someone needed it. With these changes, legal departments will need to work with IT departments to make sure they are keeping what they need and not much else.

Also, this will likely impress on employees the need to keep e-mails professional. When you write an e-mail, assume someday you'll be sitting in court while a jury views that e-mail on a 10'x10' screen.

Oh yes, all the postings here on HardOCP are likely discoverable, so observing the 10' screen rule is a good idea here too... ;)
 
Steve said:
You know, it would be COMEDY GOLD to see my IMs introduced into a court of law :D

Your honor, we would like to introduce the defendants comments AFTER the "I farted and wish you were here for it" post and BEFORE the links to "www.midgetsandgoats.com" as evidence.
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I was certain there must be a midgetsandgoats website, but apparently not :p
 
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