A Practical Guide to Admitting ESI at Trial

Since the 2006 amendments to the Federal Rules of Civil Procedure, which made explicit the discoverability of electronically stored information (ESI), a robust body of case law has developed addressing nearly every aspect of electronic-discovery practice. Courts have considered and decided such issues as when the duty to preserve ESI arises, the appropriate allocation of the costs of e-discovery, the sanctions appropriate for failing to satisfy one’s e-discovery obligations, and, most recently, whether the use of more efficient review methodologies, such as predictive coding, can satisfy a party’s e-discovery obligations. See, e.g., Zubulake v. UBS Warburgm, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004); Sean M. Georges, “Zubulake and E-Discovery: Did You Get Your Wake-Up Call?” 50-Oct Res Gestae 12 (Oct. 2006); Kenneth J. Withers, “Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure,” 7 Sedona Conf. J. 1 (Fall 2006); Ophir D. Finkelthal, “Scope of Electronic Discovery and Methods of Production (pt. 3),” 38 Loy. L.A. L. Rev. 1591 (Summer 2005); Moore, et al. v. Publicis Group SA, et al.,No. 11-1279 (S.D.N.Y. April 26, 2012).