Our mini-theme: E-Discovery

The Federal Rules of Civil Procedure were amended effective December 1, 2006, to better accommodate electronically stored information. With those amendments now firmly part of the legal landscape, it is time to take stock of where the law stands and what business lawyers need to know and do in order to take account of the new reality.

In this issue, we survey the world of electronic records, e-discovery, and electronic evidence. We begin with a piece by Tim Chorvat of Chicago that describes the new rules and provides an overview of electronic discovery and spoliation as they relate to business disputes.

We then shift our focus from actual litigation to issues concerning electronic information and recordkeeping before a lawsuit arises. A piece by Kevin Brady of Wilmington, Delaware, and Chad Breckinridge of Washington, D.C., considers what we like to think of as ordinary life—business in the absence of pending disputes or litigation. How does a business in that situation determine which types of electronic information it needs to retain, and for how long?

The next article, by Art Smith of St. Louis, answers the question of what a business needs to do when it becomes aware of a dispute that is likely to result in litigation. What is a litigation hold, and who should be involved in implementing a hold?

Having completed our tour of the stages of a potential dispute, we turn to three pieces with a broader focus. In the first, Brenda Sharton and Gregory Lyons of Boston analyze the privilege issues created by the constant use of e-mail in business and legal communications. Next is an article by Karl Wetzel of Cleveland that highlights the importance of smooth communications between lawyers and business people, on the one hand, and, on the other, the IT staff that must maintain—and often locate or recover—electronic information that relates to business disputes.

Finally, to answer many of the technical and terminological questions raised by the issues we have covered, Rob Kelly of Bloomfield Hills, Michigan, provides an explanation of the basic terms and concepts important to the world of electronically stored information.

We hope that business lawyers find this tour of the electronic landscape to be both interesting and useful.

— Timothy J. Chorvat
Chicago
— Vincent I. Polley
Bloomfield Hills, Michigan