The widespread use of information technology has resulted in ever more electronic evidence. Now the US federal procedural rules have caught up.
To keep pace with the challenges posed by the discovery of electronic evidence, members of the bench and bar in the US have labored for several years to amend the Federal Rules of Civil Procedure. These amendments were long overdue given the growing importance of electronic evidence. The result is that there is a new type of evidence, electronically stored information (“ESI”), which includes any potentially relevant data that’s stored digitally, e.g. on a computer, disk, tape, personal digital devices, or online. The amendments took effect December 1, 2006 and they are likely to impact not only federal court practice, but litigators throughout the US. What follows is a summary of some of the key changes.
The amended rules define ESI broadly enough to cover both current forms of digital information and future technological advances. As a result of the amendments, ESI is discoverable, which means that litigants must preserve and produce ESI. Naturally then, lawyers must learn how to deal with ESI, because the courts will be able to rectify electronic discovery abuses in the same manner in which they can enforce traditional discovery.
The new ESI rules contemplate that parties will preserve potentially relevant ESI in a reasonable and timely fashion, while allowing some protection to those who act diligently and in good faith to preserve data but fail due to the difficulties inherent to information technology systems.
As before, the amended rules impose an affirmative duty on parties to promptly disclose material such as ESI, documents and tangible things, which support their claims and defenses. In fact, the parties must meet and confer early in the e-discovery process to address issues relating to ESI. Moreover, the parties are expected to have answers and exhibit a genuine, good faith effort to resolve e-discovery questions.
The revised rules do not require parties to produce ESI that is “not reasonably accessible”, however a party who claims that ESI is inaccessible must prove it if their opponent objects. Adding to the unpredictability and delay is the fact that the definition of “reasonably accessible” is not clear. Even then, satisfying the court that ESI is not reasonably accessible may not be enough as the opposing party may compel production.
Importantly, you cannot produce paper printouts of documents if the originals are electronically searchable unless the other side expressly agrees or the court orders it. What is more, responding parties must produce reasonably usable ESI and the requesting party is free to select the form in which it must be produced.
Once ESI has been produced there is clawback protection for the mistaken production of privileged information. Indeed, in the information age it is increasingly common for privileged information to be mixed together with non-privileged information such as in e-mail threads. Should a party mistakenly produce privileged information they can notify the parties who received the data of the error and upon receipt of the notice the other parties must return, sequester or destroy the information, retrieve any copies made and may not use or disclose the allegedly privileged data until the claim of privilege is resolved.
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