Federal Rules of Civil Procedure and ESI – The Evolution of Electronic Discovery and Computer Forensics, Part 3: The 2006 ESI Amendments to the FRCP
The field of electronic discovery and digital forensics is rapidly evolving. In the early years of this millennium, rules of discovery were primarily concerned with paper, but with the advent of the computer age, documents are drawn up electronically, and important rules regarding electronically stored information still needed to be invented. This series looks at some of the leading cases, opinions, and results that have informed this evolution. This article describes the important 2006 amendments to the FRCP.
Following the rulings and guidance of Judge Shira Scheindlin through 2005 in the precedent-setting case of Zubulake V. UBS Warburg, several amendments regarding electronically stored information (ESI) were made to the Federal Rules of Civil Procedure (FRCP). ) that came into effect at the end of 2006. It is important to note that these new rules treat ESI as something specific separate from “documents and things”. Rules 16, 26, 33, 34, 37 and 45 were amended and ripples have moved through US law and state law in subsequent years.
rule 16 handles discovery scheduling. The new language encourages ESI to be considered early in the process. The new language added to Rule 16(b) is: “provisions for disclosure or discovery of electronically stored information” and “any agreement the parties reach to assert claims of privilege or protection as trial preparation materials after production”, which more or less comes around: include ESI production scheduling early on in discovery.
rule 26 refers to the duty to disclose. It previously required both parties to disclose the category and location of all documents and items it will use to support its claims or defenses. The producing party has the duty to disclose the relevant information that has been requested. Hiding data is deeply frowned upon by the court and could have negative consequences. What is recognized in the new changes is the fact that ESI may actually be easier and less expensive to produce than the (previously) traditional paper format. But it is also recognized that some ESI may not be reasonably accessible and if it represents an undue burden or cost, the producing party may waive such production. However, the requesting party may request discovery, requiring the producer to show why it is not reasonably accessible. The court may consider the balancing rules set forth earlier by Judge Scheindlin in Zubulake v. UBS and disclosure order after all.
The Rule 26 Amendment also provides for recovery provisions for inadvertently disclosed data. Given the sheer volume of data that can be produced as ESI, it’s not unusual to accidentally reveal something you don’t want with the incredible wealth of information that can be produced electronically. There must be accommodations to recover that data and not allow it to be used as part of the case.
The Rule 26 provision that encourages advance conference of the parties and voluntary agreements also encourages further planning and requires the attorney to preserve detectable information, consider issues related to disclosure or discovery of electronically stored information, including form or forms in which it is to be produced, and to consider any matter relating to claims of privilege or protection as preparation material for trial. Cooperation from the beginning regarding what is to be included now must be part of the process.
The Rule 26 Amendments also state that what is readily accessible should be the first thing to be obtained. For example, with email, the first thing to look for is existing email on a server or workstation, and user-visible documents. If backups or offline storage are likely to produce relevant data, a small amount should be sampled first, to see the likelihood that there really is ESI that is relevant enough to be worth the cost and expense. effort.
Tea rule 33 The amendment dealing with the questioning of the parties resolves the question of whether or not the ESI should be filed. Should be.
rule 34 The amendment deals with the production of documents and things for inspection. The Amendment to this rule explicitly recognized ESI as a category distinct from “documents and things.”
The new amendment also allows and encourages data sampling. In a case where you may have many (dozens or hundreds) of backup tapes, for example, only a few should be restored and extracted first, to see if the resident data is of particular value to the case.
The amendment to rule 37 It’s the “safe harbor” rule. Although penalties had been established as a consequence of ESI spoofing, this amendment says that the court cannot impose penalties if data was lost due to the routine and bona fide operation of an electronic information system. This rule is somewhat controversial and changes are currently being considered. However, sanctions would be at least appropriate if the data was lost due to intentional destruction intended to deprive the other party of ESI relevant to the case.
The practice-oriented citation Rule 45 again specifically includes ESI as a category of detectable information. Again it allows data to be requested produced in a specific form. Revisits the provision that undue burden or cost may preclude discovery. Resumes responsibility for preserving evidence until the claim is resolved.
The ESI Amendments of 2006 memorialized at the federal level the rules for the production and retention of electronic data. As technology advances, courts must evolve to keep up.
Next in this series: The 2009 California law changes regarding ESI.