Six Important Changes in New Edition of Managing Discovery of Electronic Information
The Federal Judiciary Center has released a new edition of its pocket guide, Managing Discovery of Electronic Information. This is the third edition of the guide, which advises judges on the proper handling of electronically stored information (ESI). It has been updated since the previous version (which was released in 2012) to reflect the December 2015 updates to the Federal Rules of Civil Procedure.
Here are six highlights of the Managing Discovery of Electronic Information:
- The guide warns that new sources of digital information may be the subject of ESI disputes. These include social media postings and satellite images.
- Technology-assisted review (TAR) is now part of the guide. The guide states that, under the limited existing case law regarding TAR, courts have approved the use of TAR when it has been agreed upon by both parties. It also warns that expert testimony may be required under Federal Rule of Evidence 72 when the use of TAR is contested.
- Judges are warned that certain types of ESI are likely to be of little relevance. The examples given include “dynamic” ESI (such as interactive websites), and ESI in the possession of a third party (such as a social media provider). The release states that parties should be encouraged to discuss in advance whether all ESI must be preserved, or if limiting the scope of preservation would better suit their needs.
- Certain types of ESI are described as remote, and costly to produce. Examples include systems data, deleted files, legacy data (information stored on technological systems that are now obsolete), offline archival media, and backup tapes. The guide also points to types of ESI that have been declared by courts to be presumptively not reasonably accessible. These include deleted data on hard drives, random access memory, data in metafields that are updated regularly, and online access data.
- The guide points to Federal Rule of Evidence 502 as an important tool for limiting the amount of time and cost spent on e-discovery. Rule 502 deals with waivers of attorney-client privilege and work product. The guide advises that under Rule 502(d), a federal court may rule that disclosing information does not waive privilege or protection in federal or state courts. Such a ruling will increase a party’s incentive to share information.
- A large portion of the guide is devoted to Rule 26(f), which requires parties to confer as soon as is practicable about discovery issues. The guide encourages attorneys to take rule 26(f) seriously, and to consider ESI issues when creating a discovery plan. It also advises judges to encourage parties to narrowly target their ESI requests.
To learn more about electronic discovery, click here.
The contents of this article are intended to convey general information only and not to provide legal advice or opinions.
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