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U.S. Shifts Discovery to Procedures

The U.S. Supreme Court recently ratified changes to the Federal Rules of Civil Procedure (FRCP), which will take effect on December 1, 2006. These changes shift the rules of discovery in a legal proceeding from a focus on policies for electronic records retention, disposition, and preservation to a focus on procedures that will streamline evidence presentation.

Magistrate Judge Hedges (N.J.) conveyed the current legal climate regarding the discovery of electronic records when he stated, “Like most judges, I expect corporations to have a document retention program that is tightly integrated with sound electronic discovery processes so that they can meet their discovery obligations and the emerging rules.”

It’s no longer sufficient to merely establish policies to govern the storage and management of electronic records—including email—to meet legal, regulatory, and business needs. Under the new rules, organizations must also implement a program based on formal processes, structured protocols, and centralized tracking and record keeping to enable discovery and effective legal holds.

Pat Franks

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