New e-discovery rules in the United States

Many of you will remember the accounting scandals a few years ago, the most prominent of which was arguably Enron.  We all heard stories about people shredding paper late at night and about emails that disappeared.  These scandals shook up the accounting profession in the United States so much that one of the major firms, Arthur Andersen, soon ceased to exist.  The ramifications of those scandals can still be felt in South Africa.

I came across two articles that discuss new rules pertaining to discovery in the United States that are intended to cast the discovery net pretty far.  Discovery is a process whereby parties are required to make disclosure of information as part of a litigation process, for the most part.  With the shift to digital media we often find that while there is little in the way of paper documentation, there is a wealth of information in a variety of digital formats.  The widespread use of email means that often valuable information can be transmitted anywhere in the world and to a number of recipients and it becomes necessary to be able to track some of that information and preserve it somehow.  These new rules require data to be stored in a manner that renders it retrievable and coherent, among other things.

These new rules touch on the importance of ensuring that data communications in the workplace are treated as if they were being conducted on paper.  There seems to be a notion that because a message can be sent with the ease of email or even an instant message, it is somehow not important that the message be treated with the same degree of circumspection and care that a printed and signed letter would merit.  Bottom line, don’t be too casual with your digital communications.  They are just as worthy of care as your printed communications and could get you into just as much hot water if the wrong things are said and communicated.  It may only be a matter of time before our own discovery rules are brought into line with this trend.

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