Coping with New E-Discovery Requirements

A series of amendments and revisions to the Federal Rules of Civil Procedure (FRCP) went into effect on December 1, 2006. These changes recognize the unique nature of electronically stored information and lays out guidelines and requirements for storing and disclosing this information. The new rules acknowledge that e-discovery doesn’t always fit into all the parameters of “conventional documents” and confirm that electronic information is just as important as traditional paper document discovery.

The rules seek to strike a balance between the realities of business and the need to provide “relevant” information that is not “privileged” by specifying that: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.” The Rules also provide a “safe harbor” in situations where documents were destroyed as part of “good faith” routine procedures that were not related to the litigation.

From the perspective of businesses of all sizes, the revised rules require systematic archiving and preservation of electronic information so that it can be produced in a format that is easily readable if requested during discovery. Companies need to put policies and procedures in place that outline what data must be retained and set up mechanisms for instituting these policies.

As the case law continues to evolve in the wake of the changes, it will be necessary for you to understand how courts are dealing with critical e-discovery issues. Applied Discovery® developed the first online law library featuring case summaries devoted to the topic of e-discovery in 2000. Since then, they’ve added nearly 700 cases to help you stay up-to-date on the quickly changing law of electronic discovery.

You can track e-discovery case law influenced by the changes to the Federal Rules of Civil Procedure by visiting the Applied Discovery special FRCP Watch section in their online law library or by subscribing to their monthly complimentary Case Summary Alerts.

For more information on FRCP Watch and other tools that LexisNexis offers to track changes in e-discovery, talk to you account representative.