Electronic Communication in Modern Litigation

It goes without saying that use of electronically stored information constitutes a fundamental component of any modern, successful company, but state and federal courts have only recently adjusted their rules of discovery to reflect that. For example, the federal courts recently revised their Rule 37, which concerns sanctions for failing to preserve or produce documents relevant to a claim or defense. Previously, Federal Rule 37(e) permitted sanctions for a party’s failure to preserve electronic information only in “exceptional circumstances.” Now, Rule 37(e) places an affirmative duty on parties to take “reasonable steps to preserve” electronic information, and that duty begins the moment litigation is anticipated, not merely commenced. State courts often follow the federal judiciary’s example—whether by expressly revising their rules in accordance or simply as an example to guide decisions when their rules are silent on an issue (as Colorado’s rule is)—so these changes are significant regardless of forum.

For businesses and individuals, the added focus on electronic information both increases a party’s discovery obligations but also protects against destruction of evidence, thereby ensuring that litigation proceeds fairly and reaches a just result in light of all the facts. Gone are the days where “routine” or “automatic” system maintenance could destroy large swatches of evidence adverse to a party. In practice, a party could easily defend against its opposition’s requests for electronic information by hiding behind a wall of technological jargon designed to excuse (or confuse) the issue entirely. The old rule placed the burden on the requesting party to prove “exceptional circumstances”—an almost impossible standard to meet without smoking-gun evidence, especially in light of judges’ reluctance to wade into the “new world” of technology.

The revised rule, however, essentially flips the burden to rest on the party unable to produce electronic evidence. Now, it must explain what “reasonable steps” it put in place to preserve this information from the moment litigation was anticipated. Given the amorphous meaning of “anticipated,” companies now must be very careful not only to begin preserving electronic information once a dispute is foreseen, but they must also disable automatic system maintenance and inform employees about routine procedures that could delete or affect such information. In light of these rule changes, electronic discovery now takes a much larger role in any case, but it is a role commensurate with the already widespread use of technology in the modern, successful company