February 01, 2011 Articles

Have You Heard of Electronic Discovery and Metadata?

Based on the amended rules and the recent case law, the question arises, "What is discoverable?" The short answer is, "everything relevant."

By John T. Rouse – February 1, 2011

On December 1, 2006, after years of comments and modifications, the amendments to the Federal Rules of Civil Procedure regarding electronic discovery became effective. The amendments affecting electronic data include Federal Rules 16, 26, 33, 34, 37, and 45.

The amendments to Rule 16(b) require the parties to discuss electronic discovery at their initial Rule 16 “meet and confer” conference, and electronic discovery may now be included in the scheduling order. The amendments to Rule 26(b)(2)(B) limit the scope of electronic discovery when information is “not reasonably accessible” because of undue burden or cost. New Rule 26(b)(5)(B) recognizes the substantial cost of reviewing a high volume of electronically stored information (ESI) for privilege and relevancy, and loosens the prior rules on inadvertent production of privileged information to address the cost issues and promote quicker initial production. The amendments to Rule 26(f) provide that at the initial discovery conference, the parties should discuss the preservation of discoverable information, discovery, and form of production of ESI, and assertion of privilege post-production. The amendments to Rules 33 and 34 discuss the actual procedures for e-discovery. Rule 37(f) was amended to include a safe harbor when a party fails to provide ESI but has acted in good faith. The amendments to Federal Rule 45 incorporate the changes made to Rules 26 and 34 for subpoenas.

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