The shift toward electronic communications over the last 20 years has been well-documented; the courts have been wrestling with the challenges posed by electronic discovery ever since. Not until December 2006 did the Federal Rules of Civil Procedure (“the new rules”) specifically address the unique challenges presented by electronically stored information (ESI). While the new rules brought much-needed attention to these challenges, they also left many questions unanswered. Unfortunately, 10 months later, the decisions interpreting the new rules have raised more questions than they answer.
Among the topics addressed by the December 2006 amendments, the following four are of particular practical import: (i) preservation of ESI and the related “safe harbor” issues; (ii) the question of reasonable accessibility and its role in determining discoverability and cost-shifting; (iii) form of production; and (iv) privilege.
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