Federal Rules of Civil Procedure and ESI – The Evolution of Electronic Discovery and Computer Forensics, Part 3: The 2006 ESI Amendments to the FRCP
The field of electronic discovery and digital forensics is rapidly evolving. In the early years of this millennium, discovery rules were primarily concerned with paper, but with the advent of the computer age, documents are written electronically, and important rules regarding electronically stored information still need to be invented. This series analyzes some of the main cases, opinions and results that have informed this evolution. This article describes the important 2006 Amendments to the FRCP.
Following Judge Shira Scheindlin’s rulings and guidance up to 2005 in the 2006 Zubulake V. case. Importantly, these new rules treat ESI as a specific thing separate from “documents and things.” Rules 16, 26, 33, 34, 37, and 45 were amended and the airwaves have moved through US law and state law in subsequent years.
Rule 16 handles discovery scheduling. The new language encourages ESIs to be considered early in the process. The new language added to Rule 16 (b) is: “provisions for the disclosure or discovery of electronically stored information” and “any agreement that the parties reach to enforce privilege or protection rights as test preparation materials after production “, which more or less comes around: include ESI production scheduling at the beginning of discovery.
Rule 26 deals with the duty to disclose. Previously, it required both parties to disclose the category and location of all documents and things that you will use to support your claims or defenses. The producing party has the duty to disclose the relevant information requested. Hiding data is very frowned upon by the court and could have negative consequences. What is recognized in the new changes is the fact that ESI may actually be easier and less expensive to produce than the (previously) traditional paper format. But it is also recognized that some ESIs may not be reasonably accessible and if it will be an undue cost or burden, the producing party may forgo such production. However, the requesting party can act to compel discovery, requiring the producer to show why it is not reasonably accessible. The court may consider the balancing rules previously established by Judge Scheindlin in Zubulake v. UBS and order disclosure after all.
The Amendment to Rule 26 also provides recovery provisions for inadvertently disclosed data. Given the sheer volume of data that can be produced as ESI, it is not unusual to accidentally reveal something you don’t want with the incredible wealth of information that can be produced electronically. There should be settings to retrieve that data and not allow it to be used as part of the case.
The Rule 26 provision that encourages conference of the parties and voluntary agreements in advance also encourages additional planning and requires the attorney to preserve traceable information, consider issues related to the disclosure or discovery of electronically stored information, including how or ways in which it should occur, and consider any issues related to claims of privilege or protection as preparation material for trial. Initial cooperation regarding what to include now should be part of the process.
The Amendments to Rule 26 also state that what is easily accessible must come first. For example, with email, the first thing to look for is existing email on a server or workstation, and documents visible to the user. If backups or offline storage is likely to produce relevant data, a small amount should be sampled first, to see the probability that there really is ESI that is relevant enough to be worth the cost and expense. effort.
Tea Rule 33 The amendment dealing with interrogations of the parties resolves the question of whether or not to file the ESI. Should be.
Rule 34 The amendment deals with the production of documents and things for inspection. The Amendment to this rule explicitly recognized ESI as a distinct category of “documents and things.”
The new amendment also allows and encourages data sampling. In a case that may have many, dozens, or hundreds of backup tapes, for example, only a few need to be restored and removed first, to see if the resident data is of particular value to the case.
The Amendment to Rule 37 is the “safe harbor” rule. Although penalties were established as a result of the plunder of ESI, this amendment says that the court cannot impose penalties if data was lost due to the routine and bona fide operation of an electronic information system. This rule is somewhat controversial and changes are currently being considered. However, penalties would at least be appropriate if the data were lost due to intentional destruction with the intent to deprive the other party of the ESIs relevant to the case.
The practice-oriented citation Rule 45 again specifically includes ESI as a category of detectable information. Again it allows the data to be requested produced in a specific way. It again reviews the provision that undue charge or cost may prevent discovery. Reviews the responsibility to preserve the evidence until the claim is resolved.
The ESI Amendments of 2006 commemorated at the federal level the rules for the production and preservation of electronic data. As technology advances, courts must evolve to keep up.
Next in this series: The 2009 California law changes regarding ESI.