A new regime for handling discovery of electronic documents in civil cases goes into effect in December and will potentially ease some of the burdens of managing e-discovery while pushing organizations to improve their enterprise information stewardship.

In 2005, the Supreme Court’s Judicial Conference Committee on Rules of Practice and Procedure proposed amendments to the rules surrounding discovery to deal directly with “electronically stored information” (http://www.uscourts.gov/rules/Reports/ST09-2005.pdf, pp. 27 ff.) The biggest and most important change is to recognize electronically stored information (ESI) as a separate category in discovery, distinct from documents and objects. With that distinction understood, many other rules are amended to account for issues of the speed and volume of automated production of information, varying degrees of recoverability, and the ephemeral nature of much information in systems. The parties in litigation are now required to discuss e-discovery during their general discovery conference in the 60 – 90 days after complaint is served, and to include e-discovery concerns in their discovery plans. They must also describe the type and location of ESI with which they will support their claim or defend themselves.

Organizations creating discovery plans or responding to information requests will have an easier time now -- as long as they have implemented good information stewardship practices in advance! Requirements to describe the ESI they will use on their own behalf will obviously be bolstered by strong data management. Specific protections from sanction for “normal course of business” deletion of data, and from “inadvertent production” of information that should have been protected from discovery have been created -- but require “good faith” in information handling. Demonstrating that you are managing information in good faith is easier if you have been following the basic tenet of information stewardship: for all information in the enterprise, define and enforce policy governing all access to it and its entire lifecycle.