Electronic discovery is a current hot topic in the litigation world, but surprisingly little has been written about it from a bankruptcy perspective in both the caselaw and commentary. An ABA Working Group, comprised of attorneys, judges and academics from across the country, was formed by the Bankruptcy Court Structure and Insolvency Process Committee of the Business Law Section of the ABA to study and prepare a report on electronic discovery and electronically stored information (ESI) issues in bankruptcy cases. The Working Group has prepared a Best Practices Report. It is anticipated that the final draft of this report, expected to be in substantially the form attached subject to final editing, will be published in the August issue of The Business Lawyer.
The Best Practices Report covers both debtor and creditor obligations to preserve electronically stored information (ESI) not only in connection with adversary proceedings, but also contested matters and the bankruptcy case itself. The Report is divided into six sections. The first three sections discuss ESI principles and guidelines in large chapter 11 cases, middle market and smaller chapter 11 cases, and chapter 7 and chapter 13 cases. Those sections are followed by sections discussing ESI issues in connection with filing proofs of claim and objections to claims, creditors’ obligations in connection with electronically stored information, and rules and procedures applicable to ESI in adversary proceedings and contested matters in bankruptcy cases.
It is the hope of the Working Group that the report will be a helpful resource guide for attorneys and judges in considering and addressing electronic discovery and ESI issues in bankruptcy cases.