Today, an article on Law.com lists the new electronic discovery amendments to the Federal Rules of Civil Procedure among the principles shaping the continued development of the role of in-house counsel.
The article says that after the most recent Federal Rules amendments became effective on December 1, 2006, "Electronically Stored Information [ESI] is discoverable and it must be preserved and produced just as paper documents are produced." However, most federal practitioners have been dealing with electronic discovery issues for years.
The new amendments to the Federal Rules have only codified, and made uniform, practices evolving from various District Courts. Practitioners familiar with those procedures have had no trouble adjusting to the amendments but it may be worthwhile to briefly discuss some of the most important changes:
- The court’s Scheduling Order may now include "provisions for disclosure or discovery of electronically stored information." Fed. R. Civ. P. 16(b).
- Parties must now discuss "any issues relating to disclosure of electronically stored information, including the form or forms in which it should be produced." Fed. Civ. P. 26(f). They must also provide, as part of their initial disclosures, "a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment . . . ." Fed. R. Civ. P. 26(a)(1)(B).
- Rule 26(b)(2)(C) has been amended to implement a "two-tier" system by which a responding party may identify electronic sources of information that are "not reasonably accessible," without incurring substantial burden or cost. The court may still order production if the requesting party makes a showing of good cause.
- Rule 37(f) now provides a "safe harbor" for certain failures to provide ESI. It provides that "[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of routine good-faith operation of an electronic information system."
Though ESI discovery procedures are important to all businesses, they are particularly significant to e-commerce businesses, since they are likely to have a much broader array of ESI than traditional brick and mortar establishments. In any event, it is an issue with which both general counsel and litigation counsel must be intimately familiar.