New Amendments to Rule 26 Dictate Use of Electronic Discovery Technology

Overview: Under the Rules Enabling Act, 28 U.S.C. §2072, the U. S. Supreme Court's amendments to the Federal Rules of Civil Procedure became effective on December 1, 2000. New changes in the rules governing discovery, particularly Rules 26(a) and 26(b)(2), support the conclusion that litigators must use electronic discovery technology 1) to have greater assurance they can be in compliance with the Rule, and 2) to make advantageous use of the changes. Of particular importance, as discussed in greater detail below, is the removal of the "opt out" provisions in Rule 26(a)(1); now all federal litigants must make the early disclosures (and document productions) required by the rule. Electronic discovery is asking for - and insisting on - the production of original evidence in computer-generated, electronic format, whether on hard drives, backup tapes, floppy disks, CD-ROMs, ZIP or JAZ drives. Electronic data can be easily lost or destroyed in the early stages of a case, through spoliation by continued use of computers by the opposing party's employees. Just as courts move toward a preference for filings of documents in electronic form over manually served and filed pleadings, so, too, will the cost benefits and efficiencies of electronic discovery find increasing favor among judges who must interpret the new language in Fed. R. Civ. Proc. 26. Litigants, too, will benefit from not having to initiate and pursue discovery of key information in order to get it at the very beginning of the case.

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Format: HTML | Date: Jan 2003 | Pages: 1