FRCP Amendments to Update Rules on E-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. At the time this article was written the amendments were scheduled to take effect on December 1, 2006 (absent blocking legislation by Congress).

The amendments represent an effort by the committee to update the discovery rules in light of the differences between paper and electronic discovery. Some of the issues the amendments attempt to address include:

• Maintenance of privilege when electronically stored information is produced to an adversary—at this point, any information that the receiving party can ferret out using forensic computing methods is fair game even if the producer had no intention of disclosing it. The amendments allow the producing party to claim a privilege, which will require the receiving party to “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 potential difficulties of producing requested information—the amendments acknowledge that some electronic information can be difficult to retrieve and might have been discarded as a normal part of doing business. The producing party must show that the production of this information will cause an undue burden because the materials are not readily accessible or will be too costly to produce. In addition, courts will not be able to 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 party requesting discovery may specify the form in which electronically stored information will be produced—the producing party can object to the request, but then must spell out the form it intends to use. If no form is specifically requested the information must be produced in its ordinarily maintained form or a reasonably usable form.

The full text of the amendments are available online from the U.S. Courts at: http://www.uscourts.gov/

LexisNexis^® Applied Discovery^®

LexisNexis Applied Discovery is a leading provider of electronic discovery services, working with many of the nation’s top law firms. Services range from data gathering and media restoration through data processing, review and production, enabling clients to search, organize, redact, Bates number, and produce electronic documents.

Our Online Review application focuses on the elements of document review most important to law firms—speed and turnaround times, case and document context, and user control. We combine the industry’s leading turnaround times with comprehensive online document review functionality. Firms can follow the discovery process they already know, while benefiting from the advantages of superior technology along the way.

The LexisNexis Applied Discovery document review approach is as much as 90% less expensive than alternative methods—including manual paper review processes and traditional scanning and coding solutions.

To help you prepare for the amendments to the FRCP, Applied Discovery offers the “Top 10 Tips to Prepare for FRCP Changes” available at: http://www.lexisnexis.com/associatesfrcp.

For more information on how LexisNexis Applied Discovery can help your firm cope with the changing demands of electronic discovery, talk to your LexisNexis account representative.