Basically this brings at least part of Sarbanes-Oxley down to all levels of business. It does provide a few "outs", though. For example, Rule 26(b)(2)(B) states:
The amendment to this rule will provide that a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. The burden would be on the responding party to show that the information is not reasonably accessible because of undue burden or cost. Even if that showing is made, the court may nonetheless order discovery if the requesting party shows good cause. The court may also specify conditions for the discovery.
That's nice, but trying to justify why it is unreasonable to store 500TB of e-mail data to someone whose knowledge of technology starts and stops with iPod ads on TV is going to be painful. And there is Rule 37(f), which I see being invoked a lot:
This amendment will provide that absent exceptional circumstances, a court may not impose sanctions on a party under the rules for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
In other words, you can overwrite backup tapes if you can prove your backup procedures maintain full copies of documents. The questions I still have are:
- What about revisions to documents? Do you need to maintain those?
- What about the autosaved revisions some applications like Word, Excel and Lotus Notes create? Do those point-in-time snapshots have to be maintained?
- What about personal computers used to conduct work-related business?
- Or what if someone uses their personal cell phone to text message a customer are we expected to capture that?
- What about using a personal digital camera to take pictures of a customer site? Are we supposed to confiscate the camera media so we can obtain a copy?
- What is the liability of the systems administrator responsible for a messaging solution? Can we be held accountable at any level?