Overview

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CHAPTER I

OVERVIEW

The goal of this third edition of the Antitrust Discovery Handbook is

to provide an updated, practical guide to discovery procedures in antitrust

cases in light of recent amendments to the Federal Rules of Civil

Procedure and Rules of Evidence. In 2006, a number of amendments

concerning electronic discovery went into effect for the Federal Rules of

Civil Procedure. One of them tackled inadvertent disclosures of privileged

communications, a subject that arises more often with electronic

documents than traditional paper documents, and in 2008 there were

related amendments to the Federal Rules of Evidence. Most recently,

changes to the civil procedure rules regarding expert witnesses went into

effect in 2010. The overview identifies each group of amendments in turn,

and the remainder of this handbook provides greater detail on these and

other discovery rules applicable in antitrust cases.

A. Electronic Discovery

Before 2006, the Federal Rules of Civil Procedure did not specifically

mention electronic discovery or electronically stored information (“ESI”).

By that time, practitioners were already dealing with electronic discovery,

and the burdens were substantial in many complex cases, including many

antitrust cases. Therefore, the federal rule changes were essentially

playing catch-up, while at the same time trying to general enough that they

might apply sensibly in the future as technology evolves.

In a nutshell, the amendments to the Rules, effective December 1,

2006, addressed the special problems associated with electronic discovery:

(1) massive volumes of evidence; (2) the vulnerability of

computer-generated evidence to modifications; and (3) the various

formats in which computer-generated data exists, which are not always

readily producible or usable.

1. Acknowledging ESI (Rules 26, 33 and 34)

For years, the most technically sophisticated reference in the Federal

Rules was arguably Rule 26’s mention of “data compilations” among the