The Amendments to the Federal Rules of Civil Procedure, effective December 1, 2006, reflect the increasing importance of electronic data in litigation. California is expected to follow suit. The changes will require counsel to “meet and confer” under Rule 26(f) to develop and electronic discovery plan within at least 21 days prior to the Rule 16(b) Scheduling Conference. That plan must include discussions about electronically stored information. At the Scheduling Conference, the court may incorporate any agreement reached during the Rule 26(f) conference into a scheduling conference. The order may include provisions on protecting privileged or attorney work product after the material has been produced, a so-called “claw-back” provision.

Although the new rules require counsel to learn about a client’s IT system and data retention policies at the very early stages of a lawsuit, the rules do take into account the expense and difficulty of preserving and producing electronic data. For example, Rule 26(a)(1)(B) now provides that a party does not need to produce electronic data if that party shows that the data is not reasonably accessible due to cost or undue burden. Furthermore, new Rule 37(f) allows to court to deny sanctions when data is lost during the regular and good faith use of the client’s data system.

Critics of the new rules are concerned about the burden on counsel to gain enough knowledge of his or her client’s electronic data to meaningfully discuss an electronic discovery plan prior to the scheduling conference. Others are concerned about the use of new, undefined terms in the rules, such as “electronically stored information”. However, prior to the Amendments, the Federal rules did not contain any provisions relating to e-discovery. The new rules recognize the prevalence of electronic data and the need for an organized method of producing that data. We will monitor the impact of these rules on e-discovery, as well as the development of California e-discovery rules.