On December 1, 2006, the electronic discovery amendments to the Federal Rules of Civil Procedure became effective. Although amended Fed. R. Civ. P. 34 established a process to identify the form in which electronically stored information (“ESI”) will be produced in federal cases, litigants still struggle with this determination. Courts have ordered parties to re-produce ESI because the initial production did not comply with the rules. The amendments provide a fair process to request a particular form of production, and also to object and propose alternatives. The advisory committee notes make clear that achieving agreement regarding the form of production is the best way to avoid discovery disputes and re-production. The rules, notes and cases suggest valuable practice tips.
Requirements of the Rules
Counsel must address the form of production in the initial conference of the parties. Fed. R. Civ. P. 26(f) provides that: “[a] discovery plan must state the parties’ view and proposals on….any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced . …”
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