Preventing and Reducing Costs and Burdens Associated with E-discovery: The 2006 Amendments to the Federal Rules of Civil Procedure

On December 1, 2006, amendments to the Federal Rules of Civil Procedure (the Rules ) regarding the discovery of electronically stored information went into effect. This form of discovery is referred to as ediscovery. The 2006 amendments have significant effect on the obligations and responsibilities of parties, their lawyers, and the courts when dealing with discovery of electronically stored information. Specifically, the 2006 amendments affect how companies maintain, preserve, and produce electronically stored information. First, electronically stored information is now included in permissible discovery. Second, parties are required to meet and confer about the discovery of electronically stored information at the onset of litigation. Third, issues pertaining to claims of privilege and waiver of privilege for electronically stored information are addressed. Fourth, matters relating to the production and form of production of electronically stored information are discussed. Fifth, limitations are imposed on the discovery of electronically stored information where a substantial burden or cost is imposed on the producing party. Sixth, a safe harbor provision is created to prevent sanctions from being imposed when electronically stored information is inadvertently destroyed or lost as a result of the routine, good-faith operation of an electronic information system