On Dec. 1, new amendments to the Federal Rules of Civil Procedure addressing discovery of electronically stored information will take effect unless Congress enacts legislation to reject, modify or defer the amendments. The amendments to Rules 16, 26, 33, 34, 37 and 45, which were approved by the U.S. Supreme Court on April 12, 2006, attempt to bring the discovery rules up-to-date in an information age in which the majority of new communication and information is now created, disseminated and stored in electronic media.
These new rules will be of particular significance in product liability litigation, in which potentially relevant electronic data relating to the design, development, manufacturing, marketing, distribution and sale of a single product may be contained in multiple information systems, in different proprietary programs, in different formats, and subject to different protocols, retention policies, and maintenance schedules throughout various divisions, branches or facilities of a single company.
For example, the company's corporate offices may use an entirely separate operating system from that used by its research labs or its manufacturing facilities. Each plant, in its own right, may have separate or proprietary data systems that vary from those at other plants. Thus, the task of identifying, preserving and producing electronic information can be particularly daunting. The new rules will require that the task be faced head-on in an attempt to bring clarity to the process.
EARLY ATTENTION TO DISCOVERY ISSUES
The proposed amendments will require the parties and the court to pay early attention to electronic discovery issues: Rule 26(f) will require parties "as soon as practicable" (but in no event later than 21 days prior to the Rule 16 initial scheduling conference) to meet and confer regarding preservation of discoverable information and the discovery of electronically stored information, including the form(s) in which it should be produced and issues relating to claims of privilege or work product. These issues must be in the parties' proposed discovery plan to the court (per amended Form 35 of the rules).
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By Jennifer Smith Finnegan and Aviva Wein