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E-Discovery Rules

By Neal D. Mollen and John P. Isa
August 28, 2007

For the in-house lawyer, managing discovery has always been a thankless task. Business people typically see lawyers (in-house or outside counsel) as impediments and time-wasters. Managers are evaluated and compensated based on their success in achieving business goals, not on how well they cooperate with outside counsel in finding and disgorging records needed for production in business litigation. Cooperation often comes grudgingly, and the in-house lawyer often finds him- herself caught between insistent outside counsel and reluctant record holders.

Electronic data storage has made that job more difficult, not easier, as some naively believed. In addition to prying loose paper documents from far-flung corners of the organization, recent amendments to the Federal Rules of Civil Procedure have engendered new expectations ' among adversaries and courts ' for the production of electronically stored data. Many employers are just beginning to realize the potential breath and scope of these rules and these engendered expectations, as well as the shocking costs, in dollars and time, that e-discovery can impose.

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