Federal Rules to be Amended to Address Electronic Discovery
On April 12, 2006, the U.S. Supreme Court approved amendments to the Federal Rules of Civil Procedure (FRCP) concerning discovery of electronically stored information. The amendments are scheduled to take effect on December 1, 2006 (absent blocking legislation by Congress).
The approval of the amendments marks the culmination of a process that began in 1999 - a lifetime ago in terms of the advancement of technology. Nevertheless, the amendments begin to bring the federal rules into line with the realities of today’s e-business world.
The amendments seek to address a number of issues which have confronted practitioners since the advent of the computer age. For example, maintaining privilege when electronically stored information is produced to an adversary can be considerably more difficult than in the case of ‘hard copies’. To avoid inadvertent waivers of privilege, amended Rule 26(b) will provide that, even after information has been produced, the producing party may advise any party that received the information of a claimed privilege and the basis for the claim. In such case, the receiving party “must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.” The amended rule also allows a receiving party to promptly submit the information to the court, under seal, for a determination of the alleged privilege.
The amendments also recognize that electronically stored information can be difficult for a producing party to retrieve and, in fact, may have been discarded as part of routine system operation. Thus, amended Rule 26(b) will also make clear that a party need not produce electronically stored information “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” The producing party, however, will bear the burden of showing such undue burden or cost on a motion to compel. Amended Rule 37(f) similarly will provide that a court may not impose sanctions on a party “for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”
The amendments to Rule 34 concern new procedures for production of electronically stored information. Rule 34(b) will provide that the party requesting discovery “may specify the form or forms in which electronically stored information is to be produced.” The producing party would then be permitted to object to the requested form(s) of the information and, in such case, must “state the form or forms it intends to use.” Where a request does not specify a particular form, the party must produce the electronically stored information “in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”
The committee notes which accompany the amendments provide insight into how the new rules will impact discovery practice. For example, under new Rule 26(b), the committee contemplates possible depositions and/or sampling where a party claims that the requested electronic information is not reasonably accessible because of undue burden or cost. The notes to amended Rule 26(f), which concerns discovery planning, urge practitioners to consider early depositions of “individuals with special knowledge of a party’s computer systems” and caution against the “[f]ailure to address preservation issues early in the litigation.” The notes also address the relatively new concept of allowing an adversary a “quick peek” at electronic information, following which a privilege designation would be made by the producing party. It is not difficult to see that, while the amendments clarify certain aspects of electronic discovery, they also represent a new litigation battleground. Until the courts have weighed in on these new procedural issues, practitioners and clients will be venturing into somewhat uncharted territory. Nevertheless, the amendments begin to clarify the contours of that terrain.
