South Carolina Lawyer
SC Lawyer, March 2007, #3.
Less Paper, More Danger? New federal rules on electronic discovery are now in effect
South Carolina Lawyer March 2007 Less Paper, More Danger? New federal rules on electronic discovery are now in effect By John F. Emerson Introduction
The U.S. Supreme Court approved amendments to the Federal Rules of Civil Procedure pertaining to discovery of electronically stored information (ESI) that took effect on December 1, 2006. The new rules substantially alter prior practice by requiring litigants to, among other things, exchange, during the initial Rule 26(f) conference, detailed information about ESI, including how it is stored, whether it is being preserved and whether the information is reasonably accessible.
The amendments change language in rules 16, 26, 33, 34, 37, 45 and Form 35. The changes in Rule 26(f) require counsel for both sides to meet at the outset of litigation to discuss the exchange of electronically stored information, commonly referred to as "e-discovery." Previously under Rule 26(f), the parties were required to confer to decide primarily such issues as the timing and scope of discovery and whether the parties want to agree to waive some of the initial disclosures required under Rule 26(a).
Summary of impact on discovery
Under the amended Rule 26(f), counsel must be prepared to discuss "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." The Committee Notes that accompany the new rules add that this conversation should cover the specific databases that may contain discoverable information, the ease with which they can be searched, whether certain databases cannot be searched in a cost-effective manner and issues revolving around preservation of data in light of the litigation. The Notes comment that the extent of the discussion will vary depending on, among other things, the dimensions of the case and the extent to which electronically stored information is likely to shed light on the facts of the case.
Summary of amendments
Rule 16(b)(5) has been amended to explicitly state that the scheduling order issued by the court may include "provisions for disclosure or discovery of electronically stored information." As before, the court is to issue a scheduling order after 26(f) reports are submitted by the parties, after a scheduling conference but no later than 90 days after the appearance by a defendant or 120 days after service of the complaint. The Committee Note adds that Rule 16(b) has been "amended to include among the topics that may be addressed in the scheduling order any agreements that the parties reach to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection."
Rule 26 has been amended in a number respects.
26(a)(1)(B), regarding initial disclosures, now requires parties to provide "a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment." This is a sweeping change in that it requires counsel to outline, in fair detail, all potentially relevant ESI in the possession or control of his or her client.
26(b)(2)(B), regarding the scope and limits of discovery, gives parties the right to refuse to provide discovery of databases that are "not reasonably accessible because of undue burden or cost." The rule outlines the procedure for a challenge and the authority of the court to uphold the decision to withhold, to compel production or to "specify conditions" for the production. The Committee Note states that a "party's identification of sources of [ESI] as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence."
26(b)(5)(A) addresses claims of privilege and protection of work product. It requires a party withholding information to...