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

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