FEDERAL RULES OF CIVIL PROCEDURE AMENDED TO ADDRESS ELECTRONIC DISCOVERY

On December 1, 2006, new provisions in the Federal Rules of Civil Procedure took effect that address discovery of electronically stored information, or e-discovery. The new rules require an initial disclosure of all electronically stored information that a party may use to support claims or defenses. If a party can demonstrate that production of the requested information is unduly burdensome or too costly, the court, in its discretion, may not require the party to produce information. The party, however, must still disclose the location and manner in which the information is held.

The amendments permit a requesting party to specify the form in which electronically stored information is to be produced, but a responding party is not required to produce the same electronically stored information in more than one form. The new provisions also provide some protection for lost electronic data; courts may not impose sanctions for loss of electronically stored information if it resulted from a routine, good faith operation of an electronic storage system.

The new rules will require litigants to produce electronic information unless it is not reasonably accessible. An understanding of what kind of electronic information ones client has and how it is stored is crucial to successful litigation. As the Federal Rules keep pace with technological developments, litigators must be aware of the new procedures in order to avoid unintentionally disclosing privileged information, undue expense to the client or even sanctions.

Jeff Langer and Kathleen Manley