One reason for this requirement is that the FRCP encourages opposing sides to negotiate exactly what documents will be required to be produced before the tort goes to trial. Each document's relevance to the specific case, and the cost in money, time and effort to produce it, are to be taken into account. And documents that are not specifically relevant to the action that are accidentally produced are to be returned to the document's owner. These changes protect against "fishing trips," in which opposing counsel attempts to require production of all e-mails between certain dates or on a general subject or sent to or by a list of people. Thus, building an information inventory via an index ahead of time can save an organization money later.

3. Corporate policies determine what must be archived

Another piece of good news for organizations is that the FRCP contains no specific requirements for what must be archived or how long it must be kept. If the organization follows an established procedure such as deleting all e-mail after two years, as long as the organization does not deviate drastically from that policy, it may not be subject to penalties for not having possibly relevant e-mails from an earlier period.

However, if the organization has the documents that are requested, then it must produce them, even if they should have been destroyed. "This means that it is very important to establish and follow policies concerning how long e-mails and other data types should be kept," Babineau says. It also means that if the organization does not keep backups of IM sessions, for instance, they are not required to start by the FRCP changes. However, it is not always easy to actually delete all copies of an e-mail from corporate systems, so deletion policies must be followed rigorously.

4. Documents can be produced in their native format