Investigative Services

Litigation Support

Contact Us

About Us

The Judicial Conference of the United States, making "the biggest change … in a generation or two," has approved changes to the Rules of Civil Procedure to govern discovery of electronic communications, including e-mails and digitally stored documents.

The amendments were developed by the conference’s Advisory Committee on Civil Rules, chaired by U.S. District Judge Lee Rosenthal of the Southern District of Texas. After a six-month period for comments, the Committee on Rules of Practice and Procedure adopted the e-discovery rules at a meeting of the Judicial Conference, the administrative policy arm of the federal courts, on Sept. 20, 2005.

The rules were then approved by the U.S. Supreme Court in April of 2006. They are expected to take effect by Dec. 1, 2006.

Some experts are predicting the rules will represent the proverbial "paradigm shift" in the practices of many attorneys.

"The amendments are the biggest change to the Rules of Civil Procedure in a generation or two," says George Paul, a Phoenix-based attorney who co-wrote the upcoming ABA book The Discovery Revolution.

Lawyers are going to have to think about whether their clients have information on laptops, desktops, servers and personal digital assistants. Lawyers are going to have to know what they are doing well enough to talk to their clients and opponents about computer forensic investigation and electronic discovery requirements.

Under the proposed amendment to Rule 26(f), a pretrial conference will include discussion of issues related to discovery of electronically stored information. "The topics to be discussed include the form of producing electronically stored information, a distinctive and recurring problem in electronic discovery resulting from the fact that unlike paper, electronically stored information may exist and be produced in a number of different forms," says the Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure.

"The parties are to discuss preservation, which has new importance in this context because of the dynamic character of electronic information. The parties are also directed to discuss whether they can agree on approaches to asserting claims of privilege or work-product protection after inadvertent production in discovery."

To deal with the inadvertent production of privileged material, the e-discovery rules contain a "clawback" provision in Rule 26(b)(5) so that if a party has produced information it claims is protected by attorney-client privilege or work product, the party may notify the receiving party of its claim and provide a basis for the claim. Upon notification, the receiving party must return, sequester or destroy the information and may not disclose it to third parties until the claim is resolved.

But the receiving party has the option of submitting the information to the court for a decision on whether the information is privileged or protected, and whether a waiver has taken place. Under the rules, however, the clawback provision can be superseded by an agreement between opposing parties.

Another hot topic is the proposed revision of Rule 26(b)(2), which states that a party need not produce electronically stored information that is not "reasonably accessible" because of "undue burden or cost." The cost allocation question has been considered in Zubulake v. UBS Warburg, 382 F. Supp. 2d 536. In that case, U.S. District Judge Shira Scheindlin held that courts must consider factors such as the likelihood of discovering critical information and the cost of the document production compared to the amount in controversy and the resources available to each party.

The amendment attempts to codify Zubulake by establishing a two-tier standard in which lawyers first obtain and examine information that can be provided from easily accessed sources such as computer hard drives, personal digital assistants (PDA), removable media such as USB devices, etc. and then determine whether it is necessary to search the difficult-to-access sources such as back up tapes.

While the rules contemplate agreements between opposing parties on e-discovery issues, Rule 26(b)(2) may be seen as an opportunity for gamesmanship.

If you can force the plaintiffs to pay $200,000 to get material off of a server or backup tapes, that may discourage plaintiffs from proceeding with a claim. Conversely, if a defendant has to bear the cost of producing material, it can be used as leverage to force a settlement.

Litigation experts agree attorneys will need to hire independent consultants and experts.

"These rules represent another reminder to practitioners that one either needs to feel conversant on electronic issues oneself, or you better get somebody to help you," says Phoenix lawyer Patricia Lee Refo, a former chair of the ABA Litigation Section.

"All in all, the e-discovery rules are a balanced attempt to address an issue that we have to deal with every day, and more guidance is better than less."

Copyright © 2008 NetEvidence, Inc. All Rights Reserved.