On Wednesday, April 12, 2006, the United States Supreme Court approved, without comment or dissent, the entire package of proposed amendments to the Federal Rules of Civil Procedure concerning the discovery of “electronically stored information.” The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The proposed amendments were transmitted to the Supreme Court last September, after the Judicial Conference unanimously approved them. The new rules and amendments have now been transmitted to Congress and will take effect on December 1, 2006, unless Congress enacts legislation to reject, modify, or defer the amendments. Thanks to Electronic Discovery Law blog for calling this to our attention.
The key provisions are:
– FRCP 26 (a)(1) initial disclosures will include “electonically stored information.”
– In the FRCP 26(f) preliminary scheduling conference counsel will be required to discuss “any issues relating to preserving discovable information,” “any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced,” and issues related to privilege and work product protection. The report of the parties’ planning meeting and the discovery plan must cover these topics.
– FRCP 26 (b)(2)authorizes a party to respond to a request by identifying sources of electronically stored information that is not reasonably accessible due to undue burden or cost. On a motion to compel, the responding party has the burden to show that the sources are not reasonably accessible, and the court may still order production. One concern is the potential for corporations to “bury” incriminating information by making it less accessible for purposes of litigation. While the potential complexity involved here is immense, it is likely that most disputes will be resolved through sometimes tedious negotiation.
– FRCP 33 (interrogatories) and 34 (requests to produce) are modified to include referencees to “electronically stored information” and “data stored in any medium.” Requests may specify the form or forms in which data is to be produced.
– FRCP 37(f) provides that “absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as the result of the routine, good faith operation of an electronic information system.” (The potential for mischief in the systematic early destruction of categories of records that would be potentially incimrinating is not to be ignored. See Why it is crucially important to hire a knowledgeable trucking lawyer within hours after a catastrohic truck wreck. While plaintiffs may argue that early destruction of records related to a catstrohic incident constitutes spoliation, we can bet that corporate defendants will frequently try to hide behind this rule.
– FRCP 45 was expanded to provide for subpoenas for electronically stored information, with provisions generally parallel to Rules 26 and 34.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).