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New rules, new game for compliance and ediscovery

Ezine

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The revised Federal Rules of Civil Procedure have only been in place since December 2006, so the precedent-setting cases that will set the direction for plaintiff and defense attorneys in the early stages of discovery regarding the determination of accessibility and authentication of documents are yet to be played out. The first case on authentication that attention is focused on is Lorraine v. Markel American Insurance Co., a relatively innocuous case about an insurance claim resulting from a lightning strike on a boat that would otherwise not merit a 101-page opinion from the judge; however, it establishes the first review of admitting electronic evidence and the following five evidence standards to be satisfied, according to a LexisNexis summary:

  • If the electronic evidence is relevant (Rule 501)
  • The authenticity of the information (Rule 901(a))
  • Whether the information is hearsay, including relevant expectation, if the document is offered for its substantive truth (Rule 801)
  • The original writing rule (Rules 1001-1008)
  • Whether the probative value of the document is substantially outweighed by the danger of unfair prejudice or other considerations (Rule 403)
  1. Monitor key process measurements. Most of us have a natural resistance to change. Far

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  1. too often, great processes migrate back to less-efficient methods because no one is watching. Metrics have to be easy to access and understand. You'll know you've succeeded when the memory of the previous state is a bit of an embarrassment.

This was first published in September 2007

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