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By Michael Marchi

A new day is dawning for electronic discovery in corporate environments. Opposing counsels recognize that e-documents stored in proprietary formats or on multiple systems no longer mean that they are inaccessible.

The proposed amendments to the Federal Rules of Civil Procedure, which have been covered extensively in e-Discovery Law & Strategy, expand the rules in regards to e-discovery. Scheduled to go into effect on December 1, unless Congress intervenes to change them, examples of previous types of rulings that the amended rules would broaden include:

  • In Rule 26(a)(1), the phrase 'electronically stored information' is added. This could require either party to locate information germane to the case even though the nature of the information is imprecise;
  • In Rule 34(a)(1), the phrase 'stored on any medium' is added. This wording is designed to be flexible enough to cover all current technologies and flexible enough to encompass future changes and developments; and
  • Rule 37(f) is an entirely new subdivision of Rule 37 and provides provisions for information lost during routine, good-faith operations. (From, Summary of the Report of the Judicial Conference. Committee on Rules of Practice and Procedure. Agenda E-18 Rules September 2005.)

As these rulings take effect, corporations will become susceptible to broader e-discovery requests ' and susceptible and subject to more of them. As companies respond to these requests, the companies' executives and counsel will awaken to the difficulties and costs of meeting the requests if they use existing access and search processes.

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