Home Computers, PDAs Targeted in New Electronic Discovery Rules

Home computers, text messages, PDAs and Internet service providers may be open to discovery during litigation because of changes in federal law, according to attorney Barney Robinson of Butler Snow, O'Mara, Stevens & Cannada, PLLC. "Mountains of data will be at risk, so companies need to take action now," he said.

The changes in the law, which take effect December 1, 2006, widen the scope of electronic discovery, handing plaintiff attorneys a powerful new too, according to Butler Snow in a release.

Because most corporate information is stored electronically, office desktops, laptops and servers have long been the target of discovery motions during litigation. The new rules allow discovery of previously unexplored territory: text messages, PDAs, Internet service providers, even home computers.

"If you use your home computer for any work-related activity, it might be subject to e-discovery during a lawsuit," said Robinson.
Butler Snow attorneys list three reasons expanded e-discovery poses problems:

• It offers a rich source of information that plaintiffs haven't considered before.
• Potential intrusion into sensitive personal data may pit private interests against corporate interests and increase the pressure to settle.
• E-discovery can wreak economic havoc on an unprepared company.

One new target for e-discovery is metadata, the electronic history of any particular document. Experts can easily retrieve earlier deletions and revisions. Butler Snow recommends that companies install a metadata scrubber on office computers and never e-mail an un-scrubbed Word document.

The consequences can be severe to companies caught flat-footed by the upcoming changes to the federal rules of civil procedure, said the release. "These changes open new ways for plaintiff attorneys to pry, apply pressure, even paralyze a company through e-discovery," said Robinson. "Be prepared."
KW