Friday, December 1, 2006

New E-Discovery Rules Today

Today is December 1, the day new Federal Rules of Civil Procedure go into effect.  This year, that means the new rules on electronic discovery.  To participants in mass tort litigation, e-discovery obviously has huge significance concerning discovery from defendants, less so from plaintiffs.

Noteworthy amendments include FRCP 34's explicit inclusion of "electronically stored information" (ESI) as a category along with documents, things, etc.; FRCP 26(b)(2)(B)'s limitation on discovery of ESI that is "not reasonably accessible"; FRCP 26(b)(5)(B)'s clawback provision allowing parties to demand the destruction or return of inadvertently produced documents or ESI; and FRCP 37(f)'s controversial safe harbor provision protecting parties from discovery sanctions for failure to produce ESI "lost as a result of the routine, good faith operation of an electronic information system."  In significant respects, the rule amendments codify Judge Shira Scheindlin's analysis in Zubulake v. UBS Warburg (SDNY 2003).

Accounts in the popular press seem to have missed the point, suggesting either that the availability of e-discovery is something new (New electronic-evidence rules catch lawyers off guard) or that the amendments impose new obligations on companies to monitor electronic information (New Rules Make Firms Track E-Mails, IMs).  Electronic discovery is nothing new.  Skilled lawyers have been requesting information from disks, floppies, CDs, memory sticks, hard drives, back-up tapes, e-mail, Palm Pilots, Blackberries, and cell phones as long as such information has existed.  The rule amendments give a name to a category that previously lawyers simply included in their definition of "document," and the amendments establish a rational set of procedures to apply to ESI.  By spelling out more clearly the applicable rules and by calling attention to ESI, the amendments may increase the amount of e-discovery, and may cause companies and to be more careful in tracking electronic information.  But if anything, the overall thrust of the rules -- particularly the safe harbor of Rule 37 and the presumptive non-discoverability of "not reasonably accessible" ESI -- is toward protecting litigants against unduly burdensome electronic discovery.


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I agree that e-discovery is not new, but the vast majority of companies have never experienced e-discovery simply by virtue of the type of litigation they experience. Organizations with mass torts, class actions, regulatory actions and securities litigation probably understand the demands of e-discovery. For the other two thirds who never had to produce email from backup tape and the sticker-shock cost of extracting and producing the evidence, the learning curve is going to be steep. All organizations, however, will be feel the impact from the greater scrutiny on records management policy, as most companies lack effective records management compliance.

As for the safe harbor, or lack thereof, and protections against producing inaccessible ESI, I anticipate more ancillary litigation on the latter and little protection for litigants coming from the former. More later...

Posted by: Rick Wolf | Dec 6, 2006 1:02:30 PM

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