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New Jersey federal practitioners will have to start clicking their mouses earlier in the litigation process, thanks to a new rule on discovery of digital information. The new stricture, Local Rule 26.1(d), requires lawyers, at the very start of a case, to review their clients’ computer and information management systems “to understand how information is stored and how it can be retrieved.” The new rule, entitled “Discovery of Digital Information Including Computer-Based Information,” was adopted on Oct. 6 and published in the New Jersey Law Journal [174 N.J.L.J. 142]. The new rule has no counterpart in the Federal Rules of Civil Procedure. A handful of other districts — Wyoming and the Eastern and Western Districts of Arkansas — have similar rules, but none is as comprehensive as New Jersey’s, says U.S. Magistrate Judge Ronald Hedges, who helped initiate the rule change. To determine initial disclosures required in discovery, a lawyer must review, with the client, files that “may be used to support claims or defenses,” including current, historical, archival, back-up and “legacy” computer files, whether in “current or historic media or formats.” In computer parlance, “legacy” files are data stored in an older format that must be converted to a current format to be accessed. A party that anticipates asking for digital information must notify the other side no later than the Rule 26(f) conference, identifying the categories of desired data as clearly as possible. The request can be supplemented later as new information about such information is acquired. During the Rule 26(f) conference, the parties have to try to agree on such issues as:

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