The two proposals are specifically targeted at electronic discovery. First, the proposed amendments to Rule 26 will require attorneys for both parties to a litigation in Federal court to sit down prior to the proceedings to discuss their clients' document management systems. That's right; you read that correctly.

The rule also requires each company to designate a spokesperson for its IT group. This is the first time the courts are bringing IT directly into litigation, according to Trent Dickey, attorney with Sills, Cummis, Epstein & Gross.

Next up, Rule 37(f), also called a safe harbor rule, says that corporations that have lost information but have otherwise acted in good faith cannot be sanctioned. Congress is expected to take action on this rule, one way or the other, by December 2006.

It is probably easiest to comprehend the importance of the changes to Rules 26 and 37(f) by looking at what happens when you don't manage documents properly. In Zubulake v. UBS Warburg, the judge instructed the jury that it was legitimate to presume that the information Warburg could not provide due to lost backup tapes and e-mails was probably damaging to the company's case. Zubulake was awarded $20 million.

According to Dickey, both this case and the more widely known Morgan Stanley case, which resulted in fines of $1.45 billion under similar circumstances, were decided 100 percent due to technology -- or rather, due to lack of good technology. If the changes to Rule 26 pass Congress and Rule 37(f) is shot down, next year there could be an awful lot of companies in the same boat as UBS Warburg and Morgan Stanley.