• The E-Discovery Amendments to the Federal Rules Civil Procedure
  • November 29, 2006
  • Law Firm: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC - Chattanooga Office
  • Information Technology (IT) departments could become the center of attention in federal litigation when the amendments to the Federal Rules of Civil Procedure (FRCP) become effective December 1, 2006. How IT departments function, what information is stored on their systems, and whether certain electronic information is "reasonably accessible" could be critical issues that litigants will be directed to address early in litigation. IT department members could become "star" witnesses in discovery disputes and even at trial.

    In the Spring of 2005, Baker Donelson alerted Litigation News readers to the proposed amendments to the FRCP. In September 2005, the Federal Rules Committee forwarded the final rule amendments to the United States Supreme Court, which then forwarded the adopted rules to Congress on April 12, 2006. Without Congressional intervention, the amendments will go into effect on December 1, 2006.

    Under the FRCP, parties are responsible for understanding their IT systems, preserving relevant information when a dispute arises, and producing responsive and discoverable einformation. As issues have arisen regarding how litigants can identify, locate, review and produce this electronic information in modern litigation, a whole new industry was created — the litigation support specialist and e-vendor. This new industry's express purpose is to help litigants navigate the labyrinth of e-discovery.

    These new amendments reflect the recognition of the Advisory Committee that litigants in the Information Age focus much of their discovery efforts on electronic information. The following issues, and many others, are now addressed by the new rules:

    • Electronically Stored Information (ESI). The FRCP now expressly recognize the discoverability of ESI from both litigants (Rule 34) and third parties (Rule 45). As the Advisory Comments make clear, the definition of ESI is "intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments." (2006 Advisory Comments to Rule 34)
    • Form of Production. The FRCP will allow the requesting party to "specify the form or forms in which [ESI] is to be produced" and will place a burden on the responding party to object and identify the form "it intends to use." (Rule 34(b)) In short, a litigant will need to make an early and informed decision regarding how it intends to produce ESI, as well as how to review and manage ESI produced to it.
    • "Reasonably Accessible" v. "Not Reasonably Accessible." The FRCP recognizes that "[a] party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost" and enumerate a procedure addressing motions to compel production of this information. (Rule 26(b) (2)(B))

    This is a new era of e-discovery with new standards and new issues. ESI will be a discovery fixture in future federal cases. IT personnel will be critically important for explaining the ESI that is available within the organization in a way that lawyers and judges can understand.

    Companies need to be cognizant about this unique intersection of the law and IT. The company's available technology — along with industry and legal standards and business considerations — should guide the ESI document retention practices of the organization.