Two Years Later, Federal Digital Storage Rules Still a Mystery to Many

By Chris Preimesberger  |  Posted 2008-12-01 Print this article Print

title=Reviewing Some Key Points in the Amendments}

The key event that caused the FRCP changes occurred in March 2000, when then-Vice President Al Gore reported that he could not immediately produce e-mails related to a probe by the Department of Justice into his fund-raising activities.

At the time, White House counsel Beth Nolan said the White House e-mails were recorded on a series of 625 tapes that would take up to six months to be searched. Setting up the tape-searching equipment alone would take two months, Nolan claimed.

Shortly afterward, a movement was started to shore up the court rules regarding digital data. This was led by Thomas Allman, senior counsel at the Chicago firm of Mayer, Brown, Rowe & Maw.

Basically, all U.S. businesses are now required to have full knowledge of the whereabouts of all their electronic data to produce evidence needed in a reasonable amount of time.

In litigation, for example, this would mean producing within 30 days relevant e-mails, text documents, spreadsheets or IMs that were originated months or years ago. The rules also dictate that two businesses involved in litigation must agree no later than 30 days before the first court date exactly what electronically stored evidence will be in play.

There is a caveat, however: Businesses do not have to keep everything. The rules say that documents deleted in the course of regular business are immune in the case of litigation.

"What a business needs to show is a repeatable, predictable process of data storage and accessibility," Allman told eWEEK in 2006.

"If e-mail or any other documentation is killed out of the system as a result of regular practice-such as a monthly or yearly purge of old documents-then that is acceptable to the court as being in the course of regular business."

Chris Preimesberger Chris Preimesberger was named Editor-in-Chief of Features & Analysis at eWEEK in November 2011. Previously he served eWEEK as Senior Writer, covering a range of IT sectors that include data center systems, cloud computing, storage, virtualization, green IT, e-discovery and IT governance. His blog, Storage Station, is considered a go-to information source. Chris won a national Folio Award for magazine writing in November 2011 for a cover story on and CEO-founder Marc Benioff, and he has served as a judge for the SIIA Codie Awards since 2005. In previous IT journalism, Chris was a founding editor of both IT Manager's Journal and and was managing editor of Software Development magazine. His diverse resume also includes: sportswriter for the Los Angeles Daily News, covering NCAA and NBA basketball, television critic for the Palo Alto Times Tribune, and Sports Information Director at Stanford University. He has served as a correspondent for The Associated Press, covering Stanford and NCAA tournament basketball, since 1983. He has covered a number of major events, including the 1984 Democratic National Convention, a Presidential press conference at the White House in 1993, the Emmy Awards (three times), two Rose Bowls, the Fiesta Bowl, several NCAA men's and women's basketball tournaments, a Formula One Grand Prix auto race, a heavyweight boxing championship bout (Ali vs. Spinks, 1978), and the 1985 Super Bowl. A 1975 graduate of Pepperdine University in Malibu, Calif., Chris has won more than a dozen regional and national awards for his work. He and his wife, Rebecca, have four children and reside in Redwood City, Calif.Follow on Twitter: editingwhiz

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