New E-Discovery Rules
The Federal Rule of Civil Procedure (FRCP) relating to electronically stored information were amended December 1, 2006.
The Center for Computer Forensics offers a free booklet that provides a complete description and history of the new rules, please contact us if you would like a copy.
Early Discussion of Electronic Discovery Issues. Rule 16(b), Rule 26(f), and Form 35 direct counsel to discuss how to handle e-discovery issues early, including decisions relating to privilege claims. The rules require counsel to address protection claims for trial-preparation materials.
Electronically Stored Information Defined. In addition to clarifying that electronically stored information is subject to production and discovery, Rule 34 (a) establishes the requesting party’s right to test and sample electronic data. Under this Rule, however, routine and direct access to the opposing party’s system is not guaranteed. Although, such access might be appropriate in some circumstances.
Production Form. Rule 34(b) allows the requesting party to specify production form for electronic documents (i.e., native format, tiff or in an online repository). When the production form is not specified or if the responding party objects to the requested form, the responding party must state the form it intends to use. The default production form may be either a form (or forms) in which the information is “ordinarily maintained” or in a “reasonably usable” form.
Production of Electronically Stored Information in Response to Interrogatories. Under Rule 33, the responding party is allowed to produce electronic data when responding to interrogatories. If direct access to the responding party’s system is the only option a requesting party has for locating and identifying the information, the responding party may choose to derive or ascertain the answer itself.
Reasonably Accessible Information. Rule 26(b)(2) mandates that a party does not have to produce electronic information that is “not reasonably accessible.” The test for reasonable accessibility is based on the “undue burden or cost” of producing the information.
Belated Assertion of Privilege. Rule 26(b)(5)(B) addresses inadvertent production of privileged or trial preparation information. Under the Rule, the receiving party may not use the data until the waiver claim has been resolved. If the information was disclosed before the receiving party was notified, the receiving party must take reasonable steps to retrieve it.
“Safe Harbor” from Sanctions. Rule 37(f) states that absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from routine, good faith operation of an electronic information system.
Subpoena for Electronically Stored Information. Rule 45 changes were made to maintain the parallels and the other rules that address discovery of electronically stored information.
The Sedona Principles:
Best Practices, Recommendations & Principles for Addressing Electronic Document Production
An excellent, non-commercial e-discovery resource for attorneys is the website for the The Sedona Conference. The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (July 2005) is a PDF document that you can download from www.thesedonaconference.org.
Included in this document is The Sedona Principles for Electronic Document Production. These 14 principles covered on one page is an excellent summary that will provide guidance on how to handle an e-discovery production. The principles do reference the new FRCP relating to electronically stored information so the principles work in conjunction with the new e-discovery rules.
