Federal Rules of Civil Proceudure.
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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 had…resulted 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
“not reasonably accessible” in regards to ESI…will further define burden for a producing party…but be prepared for challenges…online data is “accessible” and current backups are probably accessible…but 15 year old tapes on outdated media may be allowed as “not reasonably accessible”…but still must be preserved if exists
Provides guidance regarding the destruction of ESI…”Absent exceptional circumstances, a court may not impose sanctions…”
BUT, beware…without a “published”, monitored, managed retention program…this will be a heavily scrutinized area…and with overlapping litigations in a large corporation, this “safe harbor” rule may mean no backup tapes can ever be destroyed…
…the court will continue to manage the litigation as they interpret the requirements…if they determine ESI is relevant they can require it to be produced…accessible or not…reasonableness will continue to be the strongest position to present your case