 E-DISCOVERY RULES ON THE WAY
Judicial Conference OKs Regulations about Data Retention, ‘Clawbacks’ and Costs
The Judicial Conference of the United States, making "the biggest change … in a generation or two," has approved changes to the Rules of Civil Procedure to govern discovery of electronic communications, including e-mails and digitally stored documents.
The amendments were developed by the conference’s Advisory Committee on Civil Rules. The Committee on Rules of Practice and Procedure adopted the e-discovery rules at a meeting of the Judicial Conference, the administrative policy arm of the federal courts, on Sept. 20.
The rules must still be approved by the U.S. Supreme Court, though this is considered a formality. Then, if Congress does not disapprove them, they are expected to take effect by Dec. 1, 2006.
Some experts are predicting the rules will represent the proverbial "paradigm shift" in the practices of many attorneys.
Under the proposed amendment to Rule 26(f), a pretrial conference will include discussion of issues related to discovery of electronically stored information. "The topics to be discussed include the form of producing electronically stored information, a distinctive and recurring problem in electronic discovery resulting from the fact that unlike paper, electronically stored information may exist and be produced in a number of different forms," Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure.
Parties are to discuss preservation of electronic information. Parties are also directed to discuss agreements on approaches to asserting claims of privilege or work-product protection after inadvertent production in discovery.
To deal with the inadvertent production of privileged material, the e-discovery rules contain a "clawback" provision so that if a party has produced information it claims is protected by attorney-client privilege or work product. Upon notification, the receiving party must return, sequester or destroy the information and may not disclose it to third parties until the claim is resolved. Under the rules, however, the clawback provision can be superseded by an agreement between opposing parties.
Another topic is the proposed revision of Rule 26(b)(2), which states that a party need not produce electronically stored information that is not "reasonably accessible" because of "undue burden or cost." The amendment attempts to codify Zubulake v. UBS Warburg, 382 F. Supp. 2d 536, by establishing a two-tier standard in which lawyers first obtain and examine information that can be provided from "easily accessed sources, and then determine whether it is necessary to search the difficult-to-access sources." The Plaintiff has the burden of going to court and proving why you’re entitled to the information, and [the rule] allows the court to allocate costs." This generally applies to backup tapes which may not be around after three years. Regardless, this could become costly to both defendants and plaintiffs and may discourage claims or encourage settlements to avoid costs.
The "safe harbor" proposal, Rule 37(f), states that a party shall not be sanctioned for a loss of electronically stored information if the loss occurs in the course of "good faith" operation. This could encourage destruction of data so that there will not be an issue of good faith.
Litigation experts agree attorneys will either need to become familiar with electronic evidence issues or hire consultants.
These rules represent a reminder to practitioners that one either needs to feel conversant on electronic issues or you better get somebody to help you. Please contact Linda Sherman with any questions you have regarding these proposed Rules or the E-Discovery process: mail to: lss@lsshermanconsulting.com or call 610-642-7755
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