The evolution of e-discovery and computer forensics, Part 3: The 2006 ESI Amendments to the FRCP

The field of electronic discovery and digital forensics is rapidly evolving. In the early years of this millennium, discovery rules dealt primarily with paper, but with the advent of the computer age, documents are drafted electronically and important rules regarding Electronically Stored Information still needed to be invented. This series looks at a few of the major cases, opinions and outcomes that have informed this evolution. This article describes the important 2006 Amendments to the FRCP.

Following on Judge Shira Scheindlin’s rulings and guidance through 2005 in the precedent-setting Zubulake V. UBS Warburg case, there were several Amendments regarding Electronically Stored Information (ESI) made to the Federal Rules of Civil Procedure (FRCP) that took effect at the end of 2006. Importantly these new rules treat ESI as a specific thing separate from “documents & things.” Rules 16, 26, 33, 34, 37, and 45 were amended and the ripples have moved through American law and States’ law in the ensuing years.

Rule 16 is concerned with scheduling of discovery. The new language encourages that ESI be considered early in the process. The new language added to Rule 16(b) is: “provisions for disclosure or discovery of electronically stored information” and “any agreements the parties reach for asserting claims of privilege or protection as trial preparation materials after production,” which more or less comes around to: include scheduling production of ESI early on in discovery.

Rule 26 is concerned with the Duty to Disclose. It previously required both parties to disclose the category and location of all documents and things that it will use to support its claims or defenses. The producing party has a duty to disclose relevant information that’s been requested. Hiding data is deeply frowned upon by the court and could have negative consequences. What is acknowledged in the new changes is the fact that ESI may actually be easier and less expensive to produce than the (previously) traditional hard-copy format. But also acknowledged is that some ESI may not be reasonably accessible and if it will be an undue burden or cost, the producing party may be able to forgo said production. However, the requesting party may move to compel the discovery, requiring the producer to show why it’s not reasonably accessible. The court may consider the balancing rules formerly established by Judge Scheindlin in Zubulake v. UBS and order disclosure after all.

The Amendment to Rule 26 also provides for clawback provisions for inadvertently disclosed data. Given the large volume of data that may be produced as ESI, it’s not unusual to accidentally disclose something you don’t want to with the incredible wealth of information that can be produced electronically. There are to be accommodations for getting that data back and not allowing it to be used as a part of the case.

The Rule 26 provision that encourages parties’ conference & voluntary agreements early also encourages extra planning and requires counsel to preserve discoverable information, consider issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced, and to consider any issues regarding claims of privilege or protection as trial-preparation material. Cooperation at the outset regarding what is to be included should now be part of the process.

The Rule 26 Amendments also state that what’s easily accessible should be the first to be obtained. For instance, with email the first thing to go after is existing email sitting on a server or workstation, and documents visible to the user. If backups or offline storage is likely to produce relevant data, a small amount should be sampled first, to see the likelihood of there actually being ESI that is relevant enough to be worth the cost and effort.

The Rule 33 Amendment dealing with interrogatories to parties settles the question of whether or not ESI should be produced. It should be.

Rule 34 Amendment deals with the production of documents & things for inspection. The Amendment to this rule explicitly recognized ESI as a category distinct from “documents and things.”

The new amendment also allows and encourages sampling of data. In a case that may have many – dozens or hundreds – of backup tapes, for instance, just a few should be restored and extracted first, to see if the resident data is of particular value to the case.

The Amendment to Rule 37 is the “Safe Harbor” rule. Although sanctions had been established as a consequence for spoliation of ESI, this amendment says that the court may not impose sanctions if the data was lost due to routine, good faith operation of an electronic information system. This rule is somewhat controversial and changes to it are currently under consideration. However sanctions would at least be appropriate if the data was lost due to purposeful destruction with intent to deprive the other party of ESI relevant to the case.

The Subpoena Practice-oriented Rule 45 again specifically includes ESI as a category of discoverable information. It again allows for the data to be requested produced in a specific form. It again revisits the provision that undue burden or cost may preclude discovery. It revisits the responsibility to preserve evidence until the claim is resolved.

The 2006 ESI Amendments memorialized at a Federal level rules for production and preservation of electronic data. As technology leaps forward, the courts must evolve to keep up.

Next in this Series: The 2009 California changes to law with regard to ESI.

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