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Selected U.S. rules and requirements
Name |
Who It Concerns |
What Is Required |
Federal Rules of Civil Procedure (new rules effective December 1, 2006) |
Any company that could be involved in litigation in a federal court. It includes all forms of interstate transactions. |
Rule 26 requires disclosure of documents you may use to support claims or defenses without waiting for a discovery request. The parties must meet “as soon as practicable” to discuss “any issues relating to disclosure or discovery.” Generally includes searches of emails sent and received by selected employees or by content. |
Harassment Cases |
Any company that could be involved with a hostile work environment claim (sexual harassment, ethnic harassment, religious harassment, etc.) |
The U.S. Supreme Court ruled employers may be held liable if the employer “fails to take immediate and appropriate corrective action.” Investigations of complaints often involve reading emails of those involved. |
State Privacy and Identity Theft Laws (such as CA SB 1386) |
Any company in one of 30 states with such legislation or any company that deals with residents in one of those states. (For example, any company with a customer in California.) |
Various state laws require disclosure of data breaches, including email leaks, in the “most expedient time possible and without unrea-sonable delay.” |
Health Insurance Portability and Accountability Act (HIPAA) |
Health care service providers and all health care entities, including insurance companies, government agencies, and, in some cases, benefits departments. |
Enforcement rule 6. Section 160.412 says that the imposition of penalties can be precluded if the violation was not willful and the “violation has been timely corrected.” |
Sarbanes-Oxley |
Public companies, companies that may want to become public, and compa-nies that may want to be acquired by a public company. |
Section 409 requires reporting on a “rapid and current basis” of any material informa-tion. Typically involves a detailed review of emails regarding the largest sales and deals each quarter. Response must be “expedient, efficient, and thorough.” |
Foreign Corrupt Practices Act
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Public companies, companies that may want to become public, and companies that may want to be acquired by a public company.
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Department of Justice says systems must “provide management and the board of directors with timely and accurate information.” Usually means that emails from sales people and executives are reviewed. |
SEC Rule 17a-4
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Certain exchange members, brokers, and dealers.
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Section (f)3 says that the party must “be ready at all times to provide, and immediately provide” records requested by the SEC. |
Gramm-Leach-Bliley Act (GLB)
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Financial institutions.
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Guidance on Section 501(b) states if there is an incident of unauthorized access to sensitive customer information, such as account information in unencrypted email, the institution must conduct an investigation to “promptly determine” whether the information will be misused. |
New Federal Rules of Civil Procedure due to take effect on December 1, 2006.
On April 12, 2006, the Supreme Court of the United States approved the new rules and amendments to the Federal Rules of Civil Procedure, including Rules 26, 34 and 37 which deal specifically with disclosure or discovery of electronically stored information.
The new rules and amendments have been transmitted to Congress and will take effect on December 1, 2006, unless Congress enacts legislation to reject, modify, or defer the amendments.
Summary of Rules 26 and 34
Rules 26 and 34 define what constitutes electronically stored information and requires early conference between parties during which information systems and data locations must be detailed. Under this rule, a responding party should produce electronically stored information that is relevant, not privileged and reasonably accessible.
A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible because of undue burden or cost. Nonetheless the court may decide to order discovery from such sources if the requesting party shows good cause.
Rule 34 confirms that discovery of electronically stored information stands on equal footing with discovery of paper documents. Rule 34 permits the requesting party to designate the form or forms in which it wants electronically stored information produced. The rule recognizes that different forms of production may be appropriate for different types of electronically stored information.
The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information.
Summary or Rule 37 Rule 37 specifies when a party is permitted to dispose of electronically stored information by exploiting routine operation of an information system and when a party is under a duty to preserve information because of pending or reasonably anticipated litigation – “Litigation Hold”.
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