On December 1, the Federal Rules of Civil Procedure were amended to deal with e-discovery issues in a more all encompassing fashion. These new rules require attorneys to be more aware of how their clients preserve and house documents of an electronic nature.

Under these new rules, attorneys have a duty to monitor the way their clients maintain electronic data that may become discoverable in federal litigation. Counsel, whether in-house or hired, must make sure their clients, and the client’s employees, are aware of the type of documents that should be preserved for any possible future litigation. In Zubulake v. UBS Warburg, LLC, the Court suggested that attorneys speak with their client’s information technology personnel in order to better understand their document retention policies and computing infastructure. In addition, attorneys need to meet with and instruct key personnel and employees on what would constitute discoverable electronic information, the importance of making proper back-ups and storing these back-ups safely. Electronic information includes e-mails, instant messages, information on memory cards, and even information on employee cell phones and PDAs.

Steps must be in place to ensure potentially discoverable electronic data is held. If any such data is destroyed or a client attempts to destroy it, attorneys risk sanctions.

Clearly, in this day and age of information technology, it is becoming more and more pertinent that attorneys become familiar with the day–to-day use of electronic means of communication and documentation, and advise their clients accordingly.

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