E-discovery amendments to Federal Rules of Civil Procedure celebrate first anniversary

For those Judge Advocates practicing civil litigation in U.S. district courts, or supporting those who do, important amendments to the Federal Rules of Civil Procedure (Rule(s)) celebrated their first anniversary on 1 December 2007. (2) Recognizing the burgeoning role of electronically stored information (ESI) (3) in daily life, the amendments implement significant changes in the area of electronic discovery. The amendments cover Rules 16, 26, 33, 34, 37, and 45.

Early in litigation, attorneys for all parties must address e-discovery issues. A new provision in Rule 16 states that the scheduling order may address "disclosure or discovery" of ESI. (4) An addition to Rule 26 also requires the parties to consider during the initial discovery conference "any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced." (5) Such early planning is not optional: Rule 26(f) directs the "parties to discuss discovery of [ESI] if such discovery is contemplated in the action." (6)

The amendments also affect the mandatory disclosure provisions of Rule 26. Rule 26(a)(1), which requires litigants to provide, "without awaiting a discovery request," (7) notice of evidence they intend to use in prosecuting or defending their claims, now requires "a copy--or a description by category and location--of all ... [ESI] ... that the disclosing party has in its possession, custody, or control...." (8) Considering ESI's "broad meaning," (9) and in view of the breadth of electronically-stored documents, communications and data, this new requirement presents a daunting challenge. However, note that Rule 26(a)(1)(A)(ii) does not require production of all identified ESI; it just requires the disclosure of its existence.

The practitioner's true challenge comes in gathering and actually producing the ESI requested by opposing counsel. In this regard, the new Rule 26 provides some relief: "A party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost." (10) Because "undue" is in the eye of the beholder, the Committee Note devotes nearly five pages to explaining this concept. (11) Acknowledging many differences in the volume and type of ESI held by parties, the note states that ESI "systems often make it easier to locate and retrieve information.... But some sources of electronically stored information can be accessed only with substantial burden and cost." (12) If the parties cannot agree on a reasonable balance between needed discovery and an undue burden, the note suggests seven factors to help a court resolve a discovery dispute:

   (1) the specificity of the discovery request; (2) the quantity of
   information available from other and more easily accessed sources;
   (3) the failure to produce relevant information that seems likely
   to have existed but is no longer available on more easily accessed
   sources; (4) the likelihood of finding relevant, responsive
   information that cannot be obtained from other, more easily
   accessed sources; (5) predictions as to the importance and
   usefulness of the further information; (6) the importance of the
   issues at stake in the litigation; and (7) the parties' resources.
   (13)

In developing a record to argue these factors, the parties may need to take discovery about the discovery. Such discovery may take various forms. (14) Counsel also should remember that the final production rarely will result in an all-or-nothing output: "The conditions [on production] may take the form of limits on the amount, type, or sources of information required to be accessed and produced. The conditions may also include payment by the requesting party of part or all of the reasonable costs...." (15)

When producing large volumes of electronic discovery, practitioners are more at risk of inadvertently disclosing material that is subject to a claim of privilege.

   [A]s the volume of information grows exponentially with the
   ascendancy of ESI, we are fast losing the ability to review
   individual items, and it's increasingly common for privileged and
   non-privileged content to insidiously mix, as occurs when, e.g., a
   privileged exchange is an embedded thread in an apparently benign
   e-mail. (16)

Fortunately, the amendments provide attorneys with a process for attempting to "clawback" (17) privileged information inadvertently produced. If a party accidentally produces material that it believes privileged, it may notify the opposing party of its claim. (18) Upon receipt, the opposing party "must promptly return, sequester, or destroy the specified information and any copies it has; [and] must not use or disclose the information until the claim is resolved." (19) Note that the new rule does not require the opposing party to agree to the claim of privilege, nor does the new rule address whether the inadvertent disclosure constitutes a waiver of the claimed privilege. (20)