New Rules for E-Discovery: New Amendments to the Federal Rules of Civil Procedure May Make Electronic Discovery Easier and Less Costly for Corporations

By Swartz, Nikki | Information Management, November-December 2006 | Go to article overview

New Rules for E-Discovery: New Amendments to the Federal Rules of Civil Procedure May Make Electronic Discovery Easier and Less Costly for Corporations


Swartz, Nikki, Information Management


Ready or not, new electronic discovery rules go into effect December 1. In April, the Supreme Court approved amendments to the U.S. Federal Rules of Civil Procedure (FRCP) regarding e-discovery, which govern civil procedures in U.S. courts. The amendments apply not only to businesses, but also to any litigant in federal court, including nonprofit organizations, individuals, and even the government itself, according to John Montana, general counsel, Cunningham & Montana Inc.

While the amendments will not change the way businesses do business, experts say they may affect the way they currently organize, maintain, alter, delete, and archive electronic information. They also may make it easier and less costly for all organizations to manage and store such information.

"What they will do is impose a bit of order and reason on the process by which information is produced for lawsuits," Montana explained. "Depending upon how the courts apply the rules, there could be cost savings to litigants, since courts would be in a position to more actively limit discovery demands being made upon parties if the court determined that the costs were unreasonable compared to the benefits."

The amendments aim to make the guidelines clearer for companies and, specifically, for those who handle discovery requests for electronic information, such as corporate attorneys, information technology departments, and records managers. And they are dealing with these issues more frequently. In its 2005 Litigation Trends Survey, law firm Fulbright & Jaworski found that 90 percent of American corporations are involved in litigation, and the average $1 billion U.S. company faces 147 cases at any given time. According to the survey, litigation costs these firms an average of $8 million annually. In addition, e-discovery was named as the top new litigation-related burden for companies with revenues of more than $100 million.

Time will tell if the new rules will ease that burden.

The New Rules

Rule 16: The Pre-Trial Conference

First and foremost, the FRCP amendments introduce the term "electronically stored information" (ESI) into organizations' discovery lexicons. What the term encompasses is not spelled out but can be interpret ed to include everything from program files and voicemail to e-mail, websites, and instant messages. The new rules recognize ESI as a category subject to discovery, distinct from paper documents.

Amended Rule 16 requires the two parties involved in civil litigation to meet in a pre-trial conference within 30 days of the filing of the lawsuit to determine how to handle ESI. During this meeting, the parties must identify what data is "accessible" for the purposes of the legal proceedings, as well as agree on which records will be shared and in what electronic format (usually the original format in which the data is stored).

This meeting should establish the ground rules, or parameters, for the entire case concerning the production of ESI and the preservation of evidence.

"That conference is an opportunity to educate the court as to the realities of electronic discovery in terms of difficulty, cost, and inconvenience, and to give the court the opportunity to set reasonable discovery limits for the case based upon those realities," Montana said. "Smart litigants will plan to take advantage of this and begin to locate personnel within their organization to assist in this process, and begin to develop a plan for presenting the issues at the conference and educating the judge so as to obtain reasonable discovery limits."

Rule 26: Privilege, Disclosure, Discovery Scope & Limitations

This rule addresses initial disclosures, discovery scopes and limits, and claims of privilege or protection of trial-preparation materials. It specifies that parties must disclose ESI as well as hard copies that may be used to support its claims or defenses. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

New Rules for E-Discovery: New Amendments to the Federal Rules of Civil Procedure May Make Electronic Discovery Easier and Less Costly for Corporations
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.