Now that the Federal Rules of Civil Procedure have been modified to acknowledge explicitly the role electronic information plays in contemporary legal disputes, the uneasy process of adapting rules written in the era of typewriters and mimeographs to a world of e-mail and metadata has been replaced by a new task: determining how the recent amendments have — and have not — altered the existing legal landscape concerning electronic discovery.
A recent opinion in Peskoff v. Faber provides an early look at how the process of integrating the new federal rules into the prior e-discovery framework is proceeding. [FOOTNOTE 1] The opinion addresses an area of e-discovery law that had been the subject of numerous detailed judicial analyses — the propriety of shifting the costs of e-discovery from the responding to the requesting party — and attempts to draw from the recent amendments, as well as past precedents, support for the proposition that such cost-shifting is only permissible when so-called “inaccessible” electronically stored information is requested.
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