RULES. After five years of discussion and public comment the proposed amendments took effect on December 1, 2006…specifically changing language in six.

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Presentation transcript:

RULES

After five years of discussion and public comment the proposed amendments took effect on December 1, 2006…specifically changing language in six rules…Rule 16, 26, 33, 34, 37 and 45…with particular attention to electronic discovery issues…or “discovery of electronically stored information (ESI). FRCP

Rule 16 and 26 now require counsel to discuss ESI and its potential relevance in “meet and confer” meetings in advance of the scheduling conference with the court…and this meeting takes place within 120 days of a company filing a lawsuit…and 21 days prior to the scheduling conference

Because this 99 day limit will give us a hard date for ESI information plans that may be included in the scheduling plan…it will be very important for corporations to have their processes in order…retention programs, litigation holds, IT involvement, etc.

Additionally, rule 26 (b)(5) now permits parties to retrieve inadvertently disclosed, privileged information under the “clawback” agreements. Although meant to reduce costs, still a concern to hand over “un” reviewed ESI. Consider a comprehensive protective order…and even then?

FORMAT of production… –Initially a “native production” was to be required, but for several reasons the “native format” was changed in Rules 34 and 45 to read “reasonably usable”. And by discussing this at the “meet and confer” the court should see fewer disputes arising out of issue.

BE PREPARED –Know what you have… Coleman v. Morgan Stanley & Co. Inc. (Fla. Cir. Ct. Mar. 1, 2005) where “not knowing” what they had…resulted in a 1.45 billion dollar verdict. Rules 26, 33, and 34 will now mention ESI to be discussed as part of party disclosures or responses

FRCP 26 (and Rule 45 : subpoenas) –“not reasonably accessible” in regards to ESI…will further define burden for a producing party…but be prepared for challenges…online data is “accessible” and current backups are probably accessible…but 15 year old tapes on outdated media may be allowed as “not reasonably accessible”…but still must be preserved if exists

Rule 37(f) – newly added –Provides guidance regarding the destruction of ESI…”Absent exceptional circumstances, a court may not impose sanctions…” –BUT, beware…without a “published”, monitored, managed retention program…this will be a heavily scrutinized area…and with overlapping litigations in a large corporation, this “safe harbor” rule may mean no backup tapes can ever be destroyed…

Federal Rules are guidelines –…the court will continue to manage the litigation as they interpret the requirements…if they determine ESI is relevant they can require it to be produced…accessible or not…reasonableness will continue to be the strongest position to present your case