In a recent article published in the Uniform Commercial Code Law Journal, Jenner & Block Partners Daniel R. Murray, Timothy J. Chorvat and Associate Chad E. Bell discuss the substance and implications of recent amendments to the Federal Rules of Civil Procedure addressing the proper conduct of electronic discovery. Specifically, the attorneys outline the changes that took effect on December 1, 2006 and provide guidance on approaching litigation and structuring a business’s electronically stored information systems with an eye towards best practices for potential litigation.
According to the article, which focuses primarily on revisions made to rules 26(b)(2)(B), 26(b)(5)(B), 34, and 37(f), the amendments “do not represent wholesale changes in existing practice, but rather codification and specific implementation of existing duties and case law regarding electronic discovery matters.” Still, the article suggests that the amended rules offer several pragmatic lessons for corporate counsel.
First, because “the amendments place electronically stored information on equal footing with regular paper materials,” the article recommends that litigators and corporate counsel become familiar with information technology and how the businesses they represent use, store and preserve electronically stored information. The article also states that lawyers should be aware of the tools, such as sampling and cost sharing, that may be employed in cases when discovery involves production of electronically stored information that is “not reasonably accessible” under the rules.
“The more knowledgeable a lawyer is concerning how to use and discover electronic materials, the greater an asset the attorney will be to his or her client,” says the article.
In addition, the attorneys highlight the amended rules’ emphasis on communication and cooperation between parties to litigation, in hopes of avoiding discovery disputes and resolving difficult electronic discovery issues early on and away from the interference of the court. They advise that “parties should confer early and often during litigation concerning the form or forms for producing electronically stored information; how privilege should be asserted over electronic materials; and what electronically stored information is most likely to produce responsive materials without undue burden or costs.”
Finally, the article counsels attorneys to stay on top of recent developments as courts interpret and flesh out the amended rules. “Although the amendments recognize the ever-changing nature of electronically stored information,” the article states,” that very mutability will require courts to remain attentive to the underlying purposes of the rules as business technologies continue to evolve.”
Mr. Murray serves as a member of the Editorial Advisory Board of the Uniform Commercial Code Law Journal, which is published by West in coordination with the Pennsylvania State University Dickinson School of Law.