It was not so long ago that courts would not allow a litigant to access another litigant’s computer drives unless some sort of good cause – a likelihood of document destruction or tampering – was first shown. The ever-increasing use of computers and e-mail forced courts to re-examine this requirement. As a result, in 2010, the Federal Rules of Civil Procedure were amended to require litigants to identify and produce electronically-stored data that they reasonably anticipated would be used in their respective claims and defenses. On June 26, 2012, the Supreme Court of Pennsylvania followed suit and enacted new rules governing electronic discovery. Important aspects of these rules and rule a mendments are discussed below.
The previous rule required production of documents and electronically stored information. The new rule, while still requiring production, also presumes that a forensic examination of a litigant’s computers and other electronic data devices could be permitted. Specifically, the new rule requires:
(a) Any party may serve a request upon a party … or a subpoena upon a person not a party … to produce and permit the requesting party … to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, and electronically stored information), or to inspect, copy, test or sample any tangible things or electronically stored information … which are in the possession, custody or control of the party or person upon whom the request or subpoena is served, and may do so one or more times.
(b) A party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.
Pa.R.C.P. 4009.1 (effective Aug. 1, 2012)(emphasis added). In other words, it is now presumed that party can repeatedly request the inspection of another litigant’s computers (work stations and servers), external drives, back-up tapes, notebooks, cellular telephones and other sources of electronic data to obtain e-mails, texts, deleted documents and drafts of documents that include meta-data indicating documents authors, revisions and dates and times of revisions. Moreover, when requesting documents, a party may demand that the documents and data be produced in a specific format.
These amendments raise the following issues for clients and lawyers alike:
1. Employers should assure that their employees are mindful of what they convey in texts and e-mails. Although people often assume an informal tone in these forms of communication, texts and e-mails are just as relevant, discoverable and potentially binding as any other form of written communication. Attorneys know this and often pay particular attention to e-mails when looking for adverse information and admissions.
2. Businesses should assure that document retention and destruction policies are implemented and current. These policies should include provisions that address the retention and destruction of electronic equipment (such as computers, external drives, electronic notebooks and cellular telephones) as well as, in some cases, overwrite protocols.
3. People and businesses who are involved in or anticipate litigation should include computers, cellular telephones, notebooks, external drives and back-up tapes in any litigation holds that are placed on documents and other sources of information. Failure to do so could result in sanctions, adverse inference instructions and, in extreme cases, liability.
Please contact us if you require any additional information or guidance on this issue.