Picture Changing on Rules for Use of Electronic Data

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On Dec. 1, absent intervention by Congress, several proposed changes to the Federal Rules of Civil Procedure will take effect. These rule changes specifically address the challenges posed by the discovery of electronic information.

The Federal Rules are not changed often. Why now? There are host of reasons, including the tendency of district courts to adopt their own rules regarding electronic discovery; the increase in case law related to electronic discovery; and the feeling that discovery has become electronic discovery. Days of milling through boxes of paper documents have gone by the wayside and been replaced by reviewing scanned documents, emails and other electronic files using sleek online repositories or inhouse litigation applications.

The amendments focus on issues such as initial disclosure of electronic data, the format of electronic file production, inadvertent production of privileged information, inaccessible data and the need for a “safe harbor” when data is destroyed through normal business operations.

These changes will likely have a dramatic effect even before Dec. 1, and litigators should familiarize themselves with the rules now.

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