On December 1, 2006, the Federal Rules of Civil Procedure were changed to reflect amendments specifically addressing discovery of "electronically stored information." The amendments were proposed, in part, to deal with the challenges and expense associated with discovery involving the increasing large amount of information stored in electronic form. In view of the significant amount of employment-related information transmitted and/or stored in electronic form, these rule changes have great significance to employers. Among other things, the amendments, the Committee Notes which accompanied the amendments, and case law make it clear that employers are obligated to preserve all potentially relevant discoverable electronic information at the point in time when litigation is reasonably anticipated.

Further, at early stages of litigation, the amendments would require that attention be directed to issues related to the preservation and discovery of electronically stored information. A party requesting information which is stored electronically is permitted to specify in what form or manner the electronically stored information is to be produced. Where electronically stored information is not "reasonably accessible," a party generally may not need to provide it if the data is truly not reasonably accessible; however, a party may nonetheless be ordered to provide that information by the Court "for good cause."

As indicated above, one of the most significant features of the new rules is to focus attention on the duty of parties to preserve potentially relevant electronically stored information. That duty would arise, not only when litigation is commenced, but earlier -- at the point when the party at issue "reasonably should know" that the electronically stored information may be relevant to anticipated litigation.

These amendments and other developments in the area of discovery of electronically stored information should influence many employers' document retention policies and/or practices. Further, these developments should result in employers taking proactive action in training employees, who are responsible for records maintenance, in these requirements. Due to the breadth of the new rules and the duty to preserve evidence, any document which is created and stored electronically may well be subject to discovery and employers are well advised to consider the creation of strictly enforced policies in this area.