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Governance Gauge: Top Court Issues E-Discovery Rules

Newly amended e-document related laws take effect December 1, 2006.

Electronic documents present different challenges than do paper documents. For instance, they tend to come in higher volumes, they're more subject to change and they may be incomprehensible when separated from the systems that create them. Recognizing these facts, the Supreme Court and Congress have amended e-document-related aspects of the Federal Rules of Civil Procedure accordingly. The new rules take effect Dec. 1.

One notable change expands the scope of what can be included in an electronic-discovery request: In addition to e-mail messages, attachments, word processing documents, spreadsheets and presentations, requests can include graphics, digital images, instant messages, audio and video recordings, and voicemail messages. Information must be retained not only from desktops, laptops, network servers, backup systems and archive media, but also from personal digital assistants, handheld wireless devices, mobile telephones, paging devices and audio systems.

Specific amendments state that:


• A court's pretrial scheduling order can include provisions concerning electronically stored information.

• There is no duty to produce data reasonably identified as inaccessible, though the court may still order production upon good cause, with conditions.

• Via a new "claw back" procedure, a party can request the return of inadvertently produced privileged documents.

• Parties must meet and confer on e-discovery issues before the pretrial scheduling conference.

• Parties may reference electronically stored information as a type of business record from which answers to interrogatories may be derived.

• A request may specify desired data formats, and the response must state any objection to the formats.

• Parties may be given safe harbor (no discovery penalty) for inadvertent data loss if based on "routine, good faith operation" of an IT system.

• Applicable new e-discovery rules extend to subpoenas, too.

--Penny Crosman