With the long-anticipated revisions to the Federal Rules of Civil Procedure having only recently come into effect, the sense of uncertainty that has historically surrounded electronic discovery promises to linger. While the bar will watch with keen interest as the courts begin the slow process of interpreting and applying these new rules, a recent opinion, In re NTL, Inc. Securities Litigation,[FOOTNOTE 1] serves as a pointed reminder that basic issues of electronic discovery practice continue to trip up even large and sophisticated litigants.
The case also supplies some useful lessons for those who remain befuddled by discovery in the digital age. Although the problems presented by the need to retain, collect, review and produce electronically stored information can draw attorneys into unfamiliar technological territory, In re NTL teaches that the fundamentals of discovery practice that apply in all contexts — such as planning ahead, searching broadly, being forthright with the court and adversaries and closely monitoring subordinates and clients — have not been displaced but, on the contrary, have only assumed increasing importance in the era of electronic discovery.
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