New E-Discovery Rules Coming to a Federal Court Near You

Soon, Federal Rule of Civil Procedure ("FRCP") 26 will be amended to further address the parties' obligations for discovery of electronically stored information.  Essentially, the new Rule does three things:  (1) it specifies "electronically stored information" as discoverable under the initial disclosure requirements of FRCP 26(a)(1); (2) it distinguishes "readily accessible" electronically stored information (which must be produced without a showing of good cause) from such information which is not readily accessible "because of undue burden or cost"; and (3) it requires the parties to confer under FRCP 26(f) "as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due . . . to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan [which should deal with] * * * any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." 

The pertinent sections with the new language are as follows:

"Rule 26. General Provisions Governing Discovery; Duty of Disclosure

(a) Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

* * * * *

(B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

* * * * *

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

* * * * *

(2) Limitations.

* * * * *

(B) 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.

* * * * *

(f) Conference of Parties; Planning for Discovery. Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties' views and proposals concerning:

* * * * * *

(3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced[.]"

Unless Congress acts between now and then, the new rules will apply to cases filed after December 1, 2006, and to any other pending cases if "just and practicable." 

Now, more than ever, parties in litigation--and those anticipating litigation--will need to promptly establish a "litigation hold" on discoverable matter, including all "electronically stored information," as well as a policy to ensure no such information is destroyed or lost.