Vol. 36, Number 7—July 2004

New E-Discovery Rule Amendments Proposed

Discovery of electronically stored information is a focal point of proposed amendments to the Federal Rules of Civil Procedure that will be published August 15, 2004.

Disseminating the package of proposals in legal newspapers and posting the nearly-200-page report of the Judiciary's Advisory Committee on Civil Rules starts a six-month period for public comment. Publication also begins a long process that could see the amendments take effect by December 1, 2006. The proposed amendments will be available on the Judiciary's website at www.uscourts.gov.

The changes generally seek to modernize existing rules language to explicitly mention electronic discovery and require the parties to talk about any issues relating to disclosure or discovery early in the lawsuit.

Among the proposed amendments is one that relieves a party from retrieving and producing electronic information that is not reasonably accessible, including information in disaster-recovery back-up tapes, in response to a discovery request.

Another amendment sets out procedures putting a hold on the use of privileged information inadvertently produced until the court has had an opportunity to rule on the underlying issue.

Under a proposed "safe harbor" provision, a party may not be sanctioned under the rules if electronic information has been lost or destroyed as a result of the routine operation of the party's computer system—such as information lost when back-up tapes are recycled—if the party took reasonable steps to preserve the information after it knew the information to be relevant.

All public comment will be considered by the Advisory Committee on Civil Rules, and be included with its recommendations, anticipated in the spring of 2005, to the Judicial Conference Committee on Rules of Practice and Procedure.

If approved by the committee, the amendments would be considered by the Judicial Conference at its September 2005 meeting, and forwarded to the Supreme Court. The high court's adoption of new amendments then would be sent to Congress and, if meeting no objections, would take effect December 1, 2006.