Federal Rules of Civil Proceudure.
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After five years of discussion and public comment the proposed amendments took effect on December 1, 2006specifically changing language in six rulesRule 16, 26, 33, 34, 37 and 45with particular attention to electronic discovery issuesor discovery of electronically stored information (ESI).
Rule 16 and 26 now require counsel to discuss ESI and its potential relevance in meet and confer meetings in advance of the scheduling conference with the courtand this meeting takes place within 120 days of a company filing a lawsuitand 21 days prior to the scheduling conference
Because this 99 day limit will give us a hard date for ESI information plans that may be included in the scheduling planit will be very important for corporations to have their processes in orderretention programs, litigation holds, IT involvement, etc.
Additionally, rule 26 (b)(5) now permits parties to retrieve inadvertently disclosed, privileged information under the clawback agreements. Although meant to reduce costs, still a concern to hand over un reviewed ESI. Consider a comprehensive protective orderand even then?
FORMAT of production
Initially a native production was to be required, but for several reasons the native format was changed in Rules 34 and 45 to read reasonably usable. And by discussing this at the meet and confer the court should see fewer disputes arising out of issue.
Know what you have
Coleman v. Morgan Stanley & Co. Inc. (Fla. Cir. Ct. Mar. 1, 2005) where not knowing what they hadresulted in a 1.45 billion dollar verdict.
Rules 26, 33, and 34 will now mention ESI to be discussed as part of party disclosures or responses
FRCP 26 (and Rule 45 : subpoenas)
not reasonably accessible in regards to ESIwill further define burden for a producing partybut be prepared for challengesonline data is accessible and current backups are probably accessiblebut 15 year old tapes on outdated media may be allowed as not reasonably accessiblebut still must be preserved if exists
Rule 37(f) newly added
Provides guidance regarding the destruction of ESIAbsent exceptional circumstances, a court may not impose sanctions
BUT, bewarewithout a published, monitored, managed retention programthis will be a heavily scrutinized areaand with overlapping litigations in a large corporation, this safe harbor rule may mean no backup tapes can ever be destroyed
Federal Rules are guidelines
the court will continue to manage the litigation as they interpret the requirementsif they determine ESI is relevant they can require it to be producedaccessible or notreasonableness will continue to be the strongest position to present your case