Practice Tips from the Field: Evaluating Electronic Data for Rule 26 Disclosures

Electronic data is involved in virtually every case and has been for many years. In the past, however, few attorneys appreciated the value it could bring to proving or defending a case. These days, more attorneys appreciate its value and electronic discovery has accordingly become a more important issue.

Rule 26(a)(1)(B) specifically states that "a party must, without awaiting a discovery request, provide to the other parties...data compilations...that the storage media before disclosing what your client possesses. Do not rely merely upon the company "policies" regarding backing up of data. IT personnel will often make additional backups beyond their policies when performing work on systems. Sometimes a new backup system will be utilized and the old tapes will never be discarded. Instead of backups covering a period of several months, your client may have several years' worth - despite what a written policy may say. Conversely, equipment may fail and backups may not be done as often as the policy dictates.