The new electronic discovery rules set to take effect Dec. 1 in federal court are meant to clarify the obligations of parties to turn over emails and other electronically stored records—but ambiguity in some of the terminology assures that disputes will continue over when old information will have to be retrieved and what kind of programs companies need to have in place to show “good faith.”
Andrew Cohen, who heads the compliance practice at EMC Corp., notes that “a lot of litigation” is likely to brew over the issue of whether a company has demonstrated sufficient good faith to immunize itself from sanctions if information is lost.
