A Work in Progress?

It’s been four years since the Federal Rules of Civil Procedure (FRCP) were amended to cover electronic information. Many practitioners and judges now say the changes didn’t go far enough. A May conference at Duke University School of Law produced new recommendations — in particular, a revision of the duty to preserve electronic information — that the Advisory Committee on Rules of Civil Procedure will take up this fall.

The 2006 changes to the FRCP, which added “electronically stored information” as a category of discoverable material, required parties to pay early attention to electronic discovery by including sources of electronic data in their initial disclosures and by addressing e-discovery issues in the first meetings between parties. The 2006 rules also provide some protections, excusing parties from producing e-data that’s not reasonably accessible because of undue burden or cost, and carving out a safe harbor provision for electronically stored information lost from routine computer operations.