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Courts set rules on electronic documents

Lisa Napoli Dec 1, 2006

KAI RYSSDAL: Remember back when computers got popular? There was all that talk about the paperless office. Right, we know what happened there. Seems we’re buried under more paper than ever. And our hard drives are cluttered with everything from shared document files to e-mails. Just because you never print them, though, doesn’t mean they’re not real. Some new rules about old electronic correspondence went into effect in federal courts today. Marketplace’s Lisa Napoli has that story.

LISA NAPOLI: Nothing has ever been simple about the law. But in an age of electronic data, the old days of paper seem downright quaint:

ROGER MATUS: If I gave you a printed contract from the 1930s, you could still read it and argue over it. But if I gave you a floppy disc from 1990, you probably don’t have the hardware or the software to read the document.

That’s Roger Matus. He’s cashing in on one of the by-products of the Digital Age. His company sells archiving systems for e-mail. As of today, those systems are more critical than ever. The new Federal Rules of Civil Procedure spell out for the first time how companies and their lawyers must handle digital data. So that if and when a case is filed, that information can be produced, and produced quickly.

AUSTEN PARRISH: What these rules attempt to do is create some baseline national principles.

Law professor Austen Parrish says for the last 10 years, since e-mail use became widespread, any company involved in a lawsuit has struggled with how to deal with electronic evidence:

PARRISH: Each jurisdiction had come up with their own ad hoc rules on how to deal with the discovery of electronically stored information. And it led to chaos because plaintiffs weren’t sure what information they were entitled to, and defendants weren’t sure how broad they had to make their searches in order to meet the court obligations.

The cost of noncompliance can be steep. Even before the rules went into effect, a jury slapped Morgan Stanley with a $1.5 billion fine for failing to preserve digital information. A couple years back, Bank of America agreed to a $10 million fine for failing to produce an e-mail exchange crucial to a case.

Sharon Nelson is an attorney who specializes in computer forensics — the practice of mining computer systems for information. For most of this year she’s been helping companies get ready for today. She estimates that only a small fraction of corporate attorneys are prepared:

SHARON NELSON: I think what lawyers are most afraid of is there is a new duty that they understand a client’s network infrastructure. That is terrifying. Most of them cannot adequately operate the DVDs on their televisions.

Nelson says in a world where most information is created electronically and almost none of it is converted to paper, the courts are forcing lawyers and the companies they represent to learn this new language of technology in the name of justice.

In Los Angeles, I’m Lisa Napoli for Marketplace.

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