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ESI Preparedness
The era of hanging file folders and loose-leaf paper crammed into bulging metal file cabinets is a distant memory. In this digital age, customer records, financial paperwork, and research and development memoranda live on hard drives, servers and back-up tapes, not in bankers' boxes or file cabinets. In response to increasing volumes of electronic data generated and maintained, corporations are forming response teams to develop and implement protocol designed to comply with legal requirements for the preservation and production of electronically stored information (ESI).
This new era of corporate document management has been shaped by amendments to the Federal Rules of Civil Procedure (“FRCP”) and fueled by a sharp decline in corporate wealth and the corresponding uptick in corporate civil case filings. In December 2006, Rules 16, 26, 34 and 37 were amended to accommodate changes in the way information is managed in the context of litigation. Contemporaneously, the market experienced an increase in interest rates, slowing of real estate appreciation, and the economy was caught in the throws of a perfect storm created by the generous economic boom of the preceding decade. As corporate litigation increases in a down economy, businesses have felt the pressure more than ever to take inventory of teir ESI and prepare for the day their ESI management practices are called into question. Concurrently, the amended rules, along with ensuing case-law, have provided sorely needed instruction and guidance to corporations and their counsel regarding ESI discovery in civil lawsuits.
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