With the new revised Federal Rules for Civil Procedure going into effect on December 1, 2024 there will be more firms, service providers and companies having to be well versed in Electronic Discovery than ever before. Some will be brand new to this and maybe still in the mindset of the paper world.
Because of these new rules Electronic Discovery issues will have to be addressed early on. The producing format will have to be negotiated betwen the parties. If not then sanctions could follow. The domino effect of the new rules is paper may have less of an impact as more firms will have to adopt the technology method.
Changes
Rule 16(B) The scheduling order also may include (5) provisions for disclosure or discovery of electronically stored information. (6) any agreement the parties reach for asserting claims of privilege or of protection as trial preparation material after production.
Rule 26(a)(1)(b) The term "data collections" has been changed to "electronically stored information."
Rule 26(b)(2)(b)- Discovery Scope and Limits "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonable accessible because of undue burden or cost. On motion to compel discovery or from a protective order, the party from which 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...The court may specify conditions for the discovery."
Rule 26(b)(5)(b) Information Produced "A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receieving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved."
Rule 26(f) Conference of Parties; Planning for Discovery adds language to discuss any issues relating to preserving discoverable information. (26)(f)(3) any issues to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced. 26(f)(4) any issues relating to claims of privilege or of protection as trail preparation material, including- if the parties agree on a procedure to assert such claims after production. Whether to ask the court to include their agreement on an order.
Rule 26(b)(5)(b) Information produced "If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it had and may not use or disclose the information until the claim if resolved."
Rule 33(d) Interrogatories to Parties- Option to produce business records includes electronically stored information.
Rule 34(a) Production of Documents, Electronically Stored Information... Changes include the use of the term "electronically stored information" in addition terms like "sound recordings" and "images"
Rule 34(b) Procedure of Production "The request for production may specify the form in which electronically stored information is produced." "The responding party may object to the requested form. The objection must include the form in which the party intends to produce the information." "If the request does not specify the form in which it should be produced, the responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonable usable."
Rule 37(f) Failure to make disclosures; sanctions
"...absent exceptional circumstances, sanctions may not be imposed under the civil rules if electronically stored information sought in discovery has been lost as a result of the routine operation of an electronic information system, as long as that operation is in good faith. ..."
Copyright 2006 by Randall Consulting & Training Services 2006 V1.0
