SHB Partner Dave Chaumette (Houston -- Business Litigation) has co-authored an article titled "The World of e-Discovery or How I Learned to Stop Worrying and Love the New Rules," featured in the November/December issue of The Houston Lawyer. To view the article, click here.
Organized by classic lines from American films, such as "I see dead people" (The Sixth Sense), the article highlights new discovery obligations under the Federal Rules of Civil Procedure that became effective December 1, 2006. These obligations, which recognize the significance of the computer and other electronic media in today's business environment, require parties to discuss e-discovery early in a case and identify specifically what "electronically stored information" will be available and accessible.
Chaumette advises the cautious practitioner to know whom to ask for information about where and how electronic documents are stored so as to better understand the client's organization and retrieve litigation-related data with accuracy and efficiency. The article discusses an ABA civil discovery standard that provides a checklist of electronic data sources that should be preserved to avoid a spoliation claim. It also refers to the Sedona Conference guide, Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, in connection with the establishment of a document preservation program that can help any business successfully position itself, should litigation occur, with respect to emerging e-discovery principles.
The importance of a proactive approach to the discovery of electronically stored information is underscored by Chaumette's reference to cases that resulted in significant sanctions against parties found to be noncompliant with e-discovery requests.
The article concludes, "In truth, the time to start is now or maybe even yesterday. The level of technology in the workplace signals that electronic discovery is here to stay, and the courts are well aware of the parties' responsibilities. A lack of understanding means pitfalls (and opportunities) for all lawyers. Electronic discovery can be a useful tool against unwary opponents in the litigation process. Understanding these issues can lead to a better result for clients and -- equally important -- compliance with the appropriate obligations."