Updated Federal Rules of Civil Procedure require companies, entities and parties involved in Federal litigation to produce "Electronically Stored Information (ESI)" as part of the discovery process, when evidence is shared by both sides before a trial.

What does this mean to the survey research profession?If you or your company is named in a civil lawsuit, you may be required to produce ESI that is relevant to the case for the opposing party to review. ESI includes, but is not limited to, documents stored on computers, servers, PDAs, Blackberries, cell phones. Documents include email messages, word processing documents, spreadsheets, graphics, photos and any other information that may be stored electronically.

What about respondent information and Personally Identifiable Information (PII)?Respondent information and PII that is electronically stored and may be used in a civil lawsuit falls under the same document production requirements. MRA has ethical guidelines and rules that prohibit members from disclosing respondent information and PII. However, courts may legally require you to produce that information.

Why was this rule updated?In several cases over the last two years, defendants deliberately deleted and/or concealed ESI from plaintiffs (the party filing the lawsuit against the defendant). The court's goal is to ensure defendants do not deliberately delete or conceal ESI that may be necessary for review in litigation. The prior rules did not clearly specify ESI production requirements. The updated rules clearly specify ESI production requirements.

How can I comply with these rules?Companies should meet with their Information Technology (IT) staff and establish or review the following:

  • ESI document retention policies
  • ESI document retention policies for litigation
  • Respondent information and PII retention policies
  • Descriptions of documents, by category and location of ESI
  • Safety and Security procedures to preserve ESI and produce ESI when required
  • ESI that is no longer accessible

Companies, including IT staff, should then meet with their attorneys to review these policies and procedures to ensure compliance with Federal and state rules.

Is there a specific retention time requirement?No. The rules do not state a specific retention time. Companies should consult with their attorneys to determine how long ESI should be retained.

Is there a Safe Harbor?Yes. Companies that fail to provide ESI as a result of routine, good-faith operation of an electronic storage system may not be sanctioned by the court.

How much of a burden will these rules create?Martha Dawson, a partner at the Seattle-based law firm of Preston Gates & Ellis LLP who specializes in electronic discovery, indicates the burden of the new rules will not be that excessive. Companies will have to conduct an inventory of their IT systems to know where their documents are stored, and determine appropriate retention times.

Where can I get more information on this rule?

The information provided in this document is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any given laws/legislation and their impact on your particular business.