No matter how vigilant, an insured cannot fully insulate him/herself from a potential lawsuit. Defending a lawsuit can be costly, even in a case where an insured is ultimately not held liable. Advancements in technology, including the ubiquitous use of e-mail, can significantly increase the cost of litigation. With the unavoidable expenses associated with litigation, claim professionals should be aware of what mechanisms (if any) their insureds have implemented with respect to electronic discovery (e-discovery), especially in light of requirements mandated by the courts.

Relevant Rules

Courts have recognized the importance of technological advancements in litigation by implementing rules requiring parties to produce electronic information in discovery. Indeed, the Federal Rules of Civil Procedure (FRCP) require parties to produce their electronically stored information (ESI) during litigation.

In federal actions, parties are required to disclose, among other things, documents and other objects within their possession that may be used to support claims or defenses prior to receiving a discovery request. (FRCP 26(a)(1)(A)(ii)). As of December 1, 2006, the term “documents” has been expanded to include ESI among the type of information and documents produced in litigation. Similarly, there are state court rules that provide a party may request ESI from its adversary.

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