CLE – Responding to the New Challenges
Electronic Discovery Amendments to the Federal Rules of Civil Procedure: What Are They and What Is Their Impact?
The amendments to the Federal Rules of Civil Procedure are certain to bring a sea of change in the way modern litigation is
conducted. Now that the rules have gone into effect, both judges and practitioners alike are referring to the new guidelines
as they try to navigate many of the uncharted waters relating to electronic discovery. The amendment that portends the most
far-reaching changes is proposed Rule 26(b)(2)(B), which states:
A party need not provide discovery of electronically stored information from sources that the party identifies as not
reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party
from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or
cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows
good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
But the new accessibility rule isn’t the only significant change. Rule 34(b) adds an entirely new procedure that permits a
requesting party to specify the form or forms in which it wants electronically stored information produced. Another
amendment references collaborative communication about electronic discovery matters early in the case and will be
restructured per Rule 26(f) conferences and Rule 26(a) disclosures. Finally, Rule 37(f), attempts to deal with
concerns about spoliation by creating a “safe harbor” of sorts.
In the CLE, we will cover a range of topics including:
- Examination of each of the significant rule changes and how they differ from current case law
- Anticipating, from both a legal and practical standpoint, areas where companies should start to focus
- Discussion of the tools, policies, and techniques that can make compliance with the new rules cost effective and
efficient.
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