Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure have been revised, effective December 1, 2006, to require employers to preserve electronically stored information (ESI) once the employer reasonably anticipates litigation (e.g., when an employee complains to human resources, or the company receives a communication from an attorney). The new federal rules apply to any company that may find itself in federal court for any type of lawsuit.
Examples of ESI include e-mails sent to or from desktop computers, laptop computers or BlackBerrys; voice mails; instant messages; text messages; backup tapes of data if stored in a way permitting future retrieval; and mirror images (dated snapshots of a computer system). Electronic documents must be produced in their native form, so it is important to maintain the integrity of ESI. The rules cover key players involved in employment decisions, anyone "cc'd" or "bcc'd" on a message sent to or by a key player, and anyone (including secretaries and assistants) who prepares documents for key players. An employer's obligation to preserve this material is ongoing, and ESI created after litigation commences should be stored in separate files.
The new federal rules prohibit the imposition of sanctions upon an employer for failing to provide ESI lost as a result of the "routine, good-faith operation of an electronic information system." However, companies have been penalized for delays or the failure to timely produce ESI.