With the ever present risk of litigation facing the tobacco industry, companies should take note of the recent changes to the procedural rules in the US.

On December 1, 2006, the American Federal Rules of Civil Procedure (FRCP), which cover litigation, were amended to take account of the challenges associated with the disclosure of Electronically Stored Information (ESI). 

This is the production of electronic evidence such as emails, electronic documents (Word, Excel or PowerPoint files) from computer networks or back-up tapes and information from PDA’s or phones.  Any company that might be involved in US litigation should take note of the main changes and how they might effect them.

The two key amendments, which are similar to the changes made in October 2005 to the English Civil Procedure Rules, now make it compulsory for the parties in litigation to have early discussions about e-discovery and also to declare which data sources they are not going to review for relevant material.  Companies might want to amend their legal strategy to take account of these changes, and should certainly incorporate an “early look” at the e-discovery process into their case preparation efforts.

Though there are provisions to allow the routine destruction of information within normal business practices (by re-using back-up tapes for example), a concept known as “Safe Harbour”, these have yet to be tested by the US courts.  Given the traditionally hostile stance of US courts to the industry, it would be wiser to allow case law to emerge before relying upon this possible approach.  There are provisions to protect against the inadvertent disclosure of privilege information, but again these also might provide parties with a false sense of security.

In summary, it’s mainly a case of business as usual for electronic disclosure, but make sure to assess its impact early on within the litigation life cycle.

Andrew Haslam, is a consultant in the e-discovery practice at global expert services firm LECG.  He has spent the last eight years providing technology support for a large on-going case of tobacco litigation.