On December 1, 2006, several amendments to the Federal Rules of Civil Procedure ("FRCP") will become effective. The changes that deal directly with electronically stored information ("ESI") will likely affect the means, method, and timing of discovery. Selected amendments to the FRCP are discussed below:
Rule 37 – Safe Harbor – absent exceptional circumstances, a court may not impose sanctions under the FRCP on a party who fails to produce ESI lost as a result of "routine, good faith operation of an electronic information system."
Rule 26 – Initial Disclosures/Early Meeting of Counsel – a party should disclose all bases of its claims and/or defenses including ESI and discuss issues regarding ESI, including method of exchange, timing concerns, and privilege issues.
Rule 16 – Scheduling Conference/Order – the proposed plan and order should include a discovery plan that accounts for ESI (e.g. timing, methods, privilege issues).
Rule 34 – Document Requests/Responses – a document request includes ESI and a party may specify the means (e.g., form/file type) of production. The responding party, if no means for production is specified and/or for other reasons (e.g. cost), may produce ESI in the way it is kept in the ordinary course of business or in a reasonably usable form (subject to court review).
It is important that lawyers and clients work closely together to ensure compliance with the above-identified changes to the FRCP