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Federal Rules for Electronic Discovery

This past December, new Federal Court rules for electronic discovery went into place. In short, the rules require the retention and disclosure of electronically stored data, including e-mails, which relate to any federal court lawsuits in which the district is involved.

Specifically, the new rules provide that (1) a party may serve interrogatories concerning and/or request to produce electronically stored information, including the form that the requested information must be produced, (2) a party may subpoena electronic stored information, (3) a party must include in its initial disclosures (required by Rule 26(a)(1)) a description of any electronic data which supports its claims or defenses.

In essence, the rules extend to electronic data the same rules which presently exist as to written documentation and other tangible evidence, including, importantly, the obligation to preserve such evidence once a lawsuit is threatened or filed. The law imposes severe penalties for parties to litigation who fail to preserve evidence or documents (now electronic data as well) which relates to the subject matter of the lawsuit. Thus, while the obligation to preserve potential evidence (both helpful and hurtful) is not new, it is the extension of that obligation to electronic data which is new.

In addition to being reminded that all records must be preserved and protected once litigation is threatened or commenced, school districts should review their record retention practices and consider taking steps to ensure that all data, both tangible and electronic relating to the claim, is preserved once it knows it is likely to become involved in litigation.

Comments?  Email Floyd J. Dugas at or post your comments here.