Safe Harbor … Really?

Amendment 37(f) is part of the changes feds made to the Federal Rules of Civil Procedure in December 2006 to systemize the discovery process of electronically stored information (ESI).

The FRCP now requires most organizations to anticipate litigation by preparing, preserving, and producing data – paper and electronic – during discovery. This has certainly stressed the legal field, and 37(f) may alleviate some of that worry.

Known as the Safe Harbor Rule, 37(f) protects organizations from sanctions when they can’t turn over data that’s been deleted or destroyed in good-faith operations.

Today, computers are updating and deleting data as part of their routine operation. Often these changes are occurring without the knowledge of key individuals. However, the rule was not put in place to protect those organizations that intentionally destroy information to avoid discovery.

The amendment does provide organizations some reprieve. Yet, to take advantage of it, organizations must be hyper-vigilant. They must have in place extremely sound and thorough data-retention policies, and diligently enforce these policies.

Another issue with 37(f) is the definition of “good faith.” One company policy may require e-mails to be deleted after 30 days of storage. Another company may require each and every e-mail, in-bound and out-bound, on a separate server. Are both policies done in “good faith?”

It depends on good faith.

electronic document discovery