The “Electronic Discovery Law Blog” published by K & L Gates provides detailed information for plotting an archiving course.  Rule 26 is an amendment to the United States Federal Rules of Civil Procedure (FRCP). This rule covers the discovery of “electronically” stored information. Hence, in walks eDiscovery for email archiving.  Rule 26 sets the stage for magnifying why companies need to get with the program for implementing archiving solutions. A video by comedian, John Cleese, offers sound advice on the seriousness of Rule 26.

A couple of areas Rule 26 covers:

1. Electronically Stored Information from Sources that Are Not Reasonably Accessible
Amended Rule 26 creates a two tiered approach to the production of electronically stored information. It makes a distinction between information that is reasonably accessible and that which is not. Under this section of Rule 26, a company receiving a legal request for information does not necessarily have to produce it. Requested information does not have to be produced, if  electronically stored information from sources that it [a company] identifies as not being reasonably accessible because of undue burden or cost. If the requesting legal entity tries to compel discovery of such information, the company must show the information as being not reasonably accessible because of undue burden or cost. Once a company proves this request is unreasonable, a court can only order discover for good cause, subject to the provisions of Rule 26.

This two-tier system seeks to provide a balance. It provides an equitable approach to resolve the unique problem presented by electronic stored information:

• Information that may be located in a variety of locations with different types of access.

• Information from more easily accessible sources.

This provision for Rule 26 received a great deal of attention during the public comment period. The Rule 26 Advisory Committee made substantial changes to both the proposed rule and to the accompanying comments. This addressed the public concerns voiced, while balancing the interests of both requesting and responding eDiscovery parties. The responding company receives protection from being forced to tap hard to access sources. This covers instances when retrieving information or determining the presence of responsive content cannot be achieved without incurring a substantial burden or cost. The requesting legal entity benefits from knowing the sources of the responding organization does not intend to search, but has a method of obtaining this information if it is truly warranted.

2. Asserting Claim of Privilege or Work Product Protection After Production
This part of Rule 26 establishes that company information be destroyed once court processing is completed. This protects the company.  It can claim their corporate electronic data is privileged information and can assert a protective right to ownership of this material. The rule further provides that the company being asked to produce the electronic information must establish the privilege or work product claim. Then notify the receiving parties of the claim and the grounds for it. The legal requesting entity  must return, sequester, or destroy the specified information. The FRPC Committee notation clearly states that Rule 26 does not address whether the privilege or protection is waived by the production of information. This part of Rule 26 simply prohibits the receiving party from using or disclosing the information. It also requires the producing party to preserve the information, until the claim is resolved.

If this still seems unclear, feel safe in the knowledge this is the English translation of Rule 26.  All the more reason to include your legal department when implementing an email archiving strategy.