Litigation in the information age: taking discovery into the digital era to comply with new federal e‐discovery requirements

Abstract

Purpose

The paper aims to discuss the growing importance of electronic discovery in commercial litigation; the impact of the e‐discovery amendments to the Federal Rules of Civil Procedure (FRCP), and the steps corporations should take to address the new rules.

Design/methodology/approach

The paper reviews the impact of corporate reliance on electronic information on litigation; regulations that require corporations to protect data; significant cases that established ground rules for discovery of electronic information, including McPeek v. Aschcroft and Zubulake v. Warburg; the requirements of the e‐discovery rules that have been included for the first time in the FRCP; and outlines the steps that corporations should take to mitigate corporate e‐discovery risks.

Findings

The paper concludes that electronic discovery challenges will continue to grow for corporations as e‐discovery becomes increasingly important in commercial litigation; that companies can mitigate their e‐discovery risks by proactively working to meet the new requirements; that forward‐looking companies can gain important “safe harbor” protection by instituting a reliable litigation hold strategy; and that companies can use the new federal rules as an opportunity to better manage and forecast their legal costs.

Originality/value

The paper provides a general review of significant e‐discovery rulings; an explanation of the impact of the amended FRCP on corporations; and practical steps that companies can take to mitigate e‐discovery risks.

Citation

Fujitani, R. and Kunisaki, E. (2007), "Litigation in the information age: taking discovery into the digital era to comply with new federal e‐discovery requirements", Journal of Investment Compliance, Vol. 8 No. 2, pp. 26-34. https://doi.org/10.1108/15285810710759452