A notable theme of the December 1, 2015, amendments to the Federal Rules of Civil Procedure is the increased focus on the identification, preservation, and production of electronically stored information (ESI). These changes are first reflected in Fed. R. Civ. P. 16(b)(3)(B) which, as amended, now specifically addresses the preservation of ESI. While most parties are familiar with the current requirement to discuss the discovery and disclosure of ESI, the new rule, in conjunction with the revisions to Rule 37, places an emphasis on the early identification and preservation of ESI at the outset of the case.
For both inside and outside counsel, the revised rules place an increased emphasis on the early identification of potential ESI. The commentary to the amendments makes it exceedingly clear that courts should penalize parties that fail to adequately identify and preserve ESI at the outset of the case. Preservation letters and early sequestration of backup media will be essential. For corporate parties with internal IT departments, it will be essential for in-house counsel to develop an understanding of the company’s storage, retention, and backup policies in the event of litigation. By contrast, counsel representing smaller corporate entities will want to determine at the outset of the case whether the client can easily identify potentially responsive information or whether third-party support is needed to search, cull, and review potentially responsive data. Either way, the amended rules make clear that when it comes to preservation, time is of the essence.
— Greg Hearing, Gordon & Rees LLP, Denver, CO