Practice Tip: New Federal Rules for Electronic Discovery May Become Effective in 2006

In June 2005, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States approved comprehensive amendments to the Federal Rules of Civil Procedure regarding discovery of electronically stored information ('ESI'). These amendments were next presented to the Judicial Conference on Sept. 20, 2005 and then to the U.S. Supreme Court and Congress. In their present forms, the amendments would become effective as of Dec. 1, 2006. These e-discovery rule amendments include changes to FRCP Rules 16, 26, 33, 34, 37, and 45, and focus on five areas: 1) early attention to e-discovery issues, 2) discovery of ESI that is not reasonably accessible, 3) procedure for asserting privilege after production, 4) interrogatories and requests for production of ESI, and 5) sanctions and a safe harbor for certain lost ESI.