Understanding the New Federal Rules on E-discovery

Opting to produce records in lieu of answering interrogatories must include production of electronically stored data as well as traditional documents
On April 12, 2006, the United States Supreme Court approved and forwarded to Congress certain revisions to the Federal Rules of Civil Procedure addressing preservation and discovery of data in electronic media, a.k.a. e-discovery. These provisions became effective on December 1, 2006.

  • Rule 34 was originally limited to production of "documents and things." It was thereafter amended to include data compilations. The amendments exchange "data compilations" for "electronically stored information." The committee stated that "it has become increasingly difficult to say that all forms of electronically stored information, many dynamic in nature, fit within the traditional concept of a 'document.' Electronically stored information may exist in dynamic databases and other forms far different from fixed expression on paper." (Committee Notes, Rule 34(a))

  • Similarly, Rule 33 is amended to clarify that opting to produce records in lieu of answering interrogatories must include production of electronically stored data as well as traditional documents.

  • Amendments to Rule 34 also allow the requesting party to specify the form in which it wants data produced, including production of paper copies, and the requestor may specify different modes of production for differing types of data. The producing party may object to the requested form, or itself specify a form when none is requested, in its written response to the production request, allowing the court and counsel to address form and format issues prior to the actual production. A consultation requirement is included, requiring the parties to attempt to resolve their differences, similar to the provisions of Illinois Supreme Court Rule 201(k), before presenting them to the court.

  • The amendments to Rules 16(b) and 26(f) also contemplate the parties' discussion of privilege issues in production of such data.

  • Rule 34(a)(1) is amended to allow sampling of data by opposing party, either by agreement or by motion. Sampling may be appropriate where the parties truly do not know what sources may contain relevant data and therefore specific sources cannot be identified in a request to produce.

  • Rule 37(f) now reads as follows: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

  • Rule 37(f) is new and provides protections for parties keeping electronic data.

Laura Morgan is a family law consultant in Charlottesville, Virginia, and a member of the Family Advocate Editorial Board.

Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.