E-Discovery Amendments to FRCP Approved

Article excerpt

On April 12, the U.S. Supreme Court approved the proposed amendments to the Federal Rules of Civil Procedure (FRCP) concerning the discovery of electronic information. Unless Congress acts, the FRCP will become effective December 1, 2006. The revised rules may make things clearer for corporate attorneys, information technology staff, and records managers who must contend with discovery requests for electronic information.

Although some state laws address electronic discovery and case law provides some guidance, there have been continuing issues, including:

* Defining the scope of the obligation to preserve electronic information at the initiation of litigation

* Determining whether the parties involved have to save and produce information from backup tapes

* Risking sanctions for failing to produce electronic information

* The cost and effort involved to produce electronic information for discovery

Corporate attorneys have led an effort to develop best practices in electronic discovery. Their efforts have been published as The Sedona Principles: Best Practices, Recommendations and Principles for Addressing Electronic Document Production. Some courts have relied on this guidance in reaching discovery decisions, but others have not.

The Federal Rules Advisory Committee, at the urging of the corporate bar, addressed key amendments to the FRCP, and the proposed changes recognize the problems associated with electronic discovery. Highlights include:

* Recognition of electronically stored information (ESI) as a category subject to discovery that is distinct from documents and things, including the enormous volume of material in electronic systems vs. that in hard copy

* Required discussion of electronic discovery parameters, including preservation of evidence, during initial discovery conferences

* Limitations on the producing party's burden to retrieve and provide inaccessible data without good cause. …