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Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure impose certain obligations on counsel and litigants related to electronically stored information. The failure to understand or adhere to these obligations can result in severe penalties. In September of 2014, the Judicial Conference approved a set of proposed amendments to the Federal Rules of Civil Procedure. The proposed amendments are awaiting final approval from the Supreme Court and Congress. Although the proposed amendments would not go in effect until December 1, 2015, many of the proposed amendments target the challenges, problems and issues created by electronically stored information and may signal a shift in judicial thinking.
Texas Rules of Civil Procedure
The Texas Rules of Civil Procedure also impose obligations on counsel and litigants related to electronically stored information. Although the Texas Rules and case law related to electronically stored information are not as developed as other jurisdictions, the failure or refusal to understand and manage electronically stored information in the context of an anticipated or ongoing dispute can have devastating consequences to clients, law firms, and individual attorneys.
Department of Justice
The Department of Justice continues to provide significant guidance regarding the review and production of electronic data in the context of a civil investigative demand. As the requests continue to demand more and more data, the successful representation of your client necessarily involves competence in handling and managing electronically stored information. The DOJ will require compliance with production specifications which may vary by division. The Antitrust Division provides additional guidance under the Electronic Discovery section of its website. As with all governmental agencies, it is important to remember that the instructions provided along with the request itself will typically supersede any specifications provided on the agency's webpage.
Federal Trade Commission
Generally speaking, the Federal Trade Commission requires that information produced in response to a request or subpoena be produced in a specific format. In order to satisfy the FTC's production requirements, the process must be managed properly from collection to production to ensure that the corresponding metadata is not compromised. The FTC has provided additional guidance regarding the production process in the BC Production Guide. It is important to note that the Production Guide does not trump any instructions provided with the request or subpoena.
Securities and Exchange Commission
The Securities and Exchange Commission has specific data delivery standards that set forth the technical requirements for paper and electronic document production. The Enforcement Division of the SEC lays out the requirements in the Data Delivery Standards. Any proposed modifications to the delivery standards must be approved by the staff prior to submission.