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The Impact of Technology on Case Law under the 2006 FRCP Amendments

By Adam Cohen and Jason Ray

The 2006 amendments to the Federal Rules of Civil Procedure ('FRCP') contain a host of technology-oriented standards and procedures. Accordingly, it is not surprising that the case law in the wake of these amendments reflects the unstoppable march and advancement of computer technology. This article illustrates some of the most important ways in which this technology has influenced judicial opinions regarding electronically stored information ('ESI') under the new rules, including:

  • Increased use of forensic preservation and collection;
  • Strategic control of search protocols;
  • Definition of 'reasonably accessible' ESI sources; and
  • Expanding scope of potential sources of relevant ESI.

Forensic Preservation and Collection

ESI is often collected logically (i.e., backup or file copy) by client IT resources rather than forensically (i.e., complete bit-by-bit copy), under various rationales, e.g., that the client should not have to produce deleted ESI recoverable only through forensic imaging, or that metadata that could be altered by logical copying is irrelevant.

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