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Supreme Court Approves
Extensive Changes To Federal Electronic Discovery Rules
On April 12, 2006, the United States Supreme Court approved, without comment or dissent, proposed amendments to the Federal Rules of Civil Procedure that will significantly alter the way in which litigants must handle discovery of "electronically stored information.“ The new rules and amendments have been sent to Congress and will take effect on December 1, 2006, unless Congress enacts legislation to modify, reject, or defer the amendments. Among other changes, the proposed amendments will modify Rules 16, 26, 33, 34, 37, and 45, as follows:
- Rule 16(b): The court’s pre-trial scheduling order can include provisions concerning electronically stored information;
- Rule 26(b)(2): There is no duty to produce data reasonably identified as inaccessible, though the court may still order production upon good cause, with conditions;
- Rule 26(b)(5): Creates a “claw back” procedure whereby a party can request the return of inadvertently produced privileged documents;
- Rule 26(f): Parties must meet and confer on e-discovery issues before the pre-trial scheduling conference;
- Rule 33(d): Parties may reference “electronically stored information” as a type of business record from which answers to interrogatories may be derived;
- Rule 34: Production request may specify desired e-data format and response must state any objection to requested format; “ordinary” (a/k/a “native”) file format or “reasonably useable” form is production default;
- Rule 37: Provides “safe harbor” (i.e., no discovery sanctions) for inadvertent e-data loss if based on “routine, good faith operation” of an IT system; and
- Rule 45: Applicable new e-discovery rules extend to subpoenas, too.
- The complete text of the Rules can be found at the U.S. Court Federal Rulemaking website: http://www.uscourts.gov/rules/newrules6.html#cv0804. If you have any questions or concerns about the proposed rules changes, please call Stephen D. Whetstone, Esq. or Michael S. Simon, Esq., in Stratify’s Boston office at (617) 330-2820. Between them, Stephen and Mike have over 20 years of litigation experience and have handled many complex matters which turned on the proper handling of electronic data.