Don't let the terabyte you: new e-discovery amendments to the federal rules of civil procedure.

• Author: Shelton, Gregory D.

A TERABYTE is unit of measurement for data storage capacity that is roughly equivalent to 50,000 trees made into paper and printed; (1) it is 500 million typewritten pages of plain text; (2) it is enough words that it would take every adult in America speaking at the same time five minutes to say them all, (3) and it is the amount of data that can be stored on only two to three commercially available hard disk drives, or on a single network server.

Electronic discovery is now a fact of life for companies, litigators and courts. The proliferation of computer usage, inexpensive data storage, and developments in communication technology have changed modern discovery practice tremendously over the past several years. Courts around the country have been promulgating ad hoc case law, rules, and procedures to deal with electronic discovery. (4) The United States Judicial Conference Committee on Rules of Practice and Procedure voiced concern about the effect this patchwork of rules will have on companies and individual litigants:

Developing case law on discovery into electronically stored information under the current rules is not consistent and is necessarily limited to the specific facts involved. Disparate local rules have emerged to fill this gap between the existing discovery rules and practice, and more courts are considering local rules. Without national rules adequate to address the issues raised by electronic discovery, a patchwork of rules and requirements is likely to develop. While such inconsistencies are particularly confusing and debilitating to large public and private organizations, the uncertainty, expense, delays, and burdens of such discovery also affect small organizations and even individual litigants. (5) To address the gap between the current Federal Rules of Civil Procedure and modern discovery practice, the Judicial Conference proposed amendments to Federal Rules of Civil Procedure 16, 26, 33, 34, 37, 45, and Form 35. The United States Supreme Court approved the amendments and, absent unexpected congressional intervention, the changes will take effect on December 1, 2006. (6) Although the amendments are still a few months away, courts have already started looking to the proposed rules for guidance. (7)

Perhaps the most significant change effected by the new amendments will be the imposition of obligations on the parties to address issues relating to the discovery of electronic information very early in litigation. Meeting those obligations and the other requirements set forth in the new amendments will call for some new and creative approaches to discovery. Staying ahead of the terabytes of information that are accumulating in companies' computer systems and managing that information for discovery will require a great deal cooperation and communication between companies and their counsel. Indeed, there is already a growing expectation by the judiciary that counsel will be familiar with their client's electronic information systems.

Brief Summary of the Amendments

The proposed rules do not dramatically change e-discovery practices that have developed over the years in many jurisdictions. The proposed rules will specifically empower courts to adopt the parties' agreements regarding e-discovery into pretrial case management and scheduling orders. The new rules will allow a requesting party to test or sample electronically stored information and specify the format in which it wants electronic information produced. The rules also establish a two-tiered process for production whereby easily obtained information can be produced first, and less accessible data can be produced later, if necessary. The new rules envision a safe harbor from sanctions for the loss of electronically stored information, provided the loss is occasioned by the good-faith, routine operation of computer equipment. Finally, the rules introduce formal procedures regarding the inadvertent production of privileged or protected documents or electronic information. Many of the proposed amendments simply conform the rules to practices that have developed by courts and practitioners over the past several years.

New Terminology

The proposed rules recognize that electronic information can not always be neatly categorized under the current terminology: "documents" and "data compilations." For instance, relational databases are not simply documents, and they are more than just data compilations. Similarly, multimedia files such as video or sound files do not fit the traditional definition of "documents." Accordingly, the phrase "electronically stored information" is introduced to describe discoverable information that is recorded or stored on any electronic medium.

Federal Rule of Civil Procedure 34 lists examples of "documents" and "electronically stored information," and it has been updated to include:

writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained translated, if necessary, by the respondent into reasonably usable form. (8) The term "phonorecords" has been eliminated from the list, and the terms "sound recordings," "images," and "data" have been added. It is important to point out that some of the new rules treat electronically stored information as separate and distinct from documents. Therefore, in order to avoid ambiguity, definitions in boilerplate document requests and interrogatories may need to be updated to address this distinction and to include the new terms to avoid ambiguity.

Early Attention to Electronic Discovery

The proposed amendments to Federal Rules of Civil Procedure 16, 26(a), and 26(f) seek to impose obligations on the parties and the court to address electronic discovery early in the litigation process. Under the new Federal Rule of Civil Procedure Rule 16(b)(5), courts will be authorized to include in scheduling orders "provisions for disclosure of electronically stored information." Courts will also have the discretion to enter into scheduling and case management orders "any agreement the parties reach for asserting...