Information technology departments of sophisticated organizations are already aware that each party to a litigation in the United States is obligated to collect its own discoverable electronic information to be produced to the opposing party. A recent change to Federal Rule of Civil Procedure 34(a) makes clear that this honor system is not without limitation, and in certain situations, pursuant to a court order, a requesting party may be permitted to collect an opponent’s electronic data, and associated metadata, itself. Such inspections, as they are known, can range from creating an image of a single computer to a full forensic examination of a network. The assistance of an organization’s IT personnel in navigating these situations is critical, first in providing the technical guidance necessary to oppose the request, and then in assisting in conducting the inspection if the request is granted.

On Dec, 1, 2006, Fed. R. Civ. P. 34(a) was amended to allow a party to request to enter an opposing party’s facilities and computer systems to search for discoverable electronic information. Similar relief had been available before the amendment, but was used infrequently. Such requests to inspect can target any data repository or combination of repositories, including live e-mail systems, archive e-mail files (such as Outlook PST files), laptop and desktop computers, portable backup media, BlackBerrys, USB “keychain” drives, network servers, home directories, shared files and backup tapes.

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