London Market News Is
Now Electronic!
11/1/2006
Breaking News: New Federal
Electronic Discovery Requirements
Welcome to the first electronic edition of Lane Powell's
London Market News! Since 1978, London Market News,
formerly Admiralty News, has been provided to clients and
friends in hard copy format on a biannual basis. Our new
electronic London Market News will now be available at
least once a month. Future issues over the next six months
will focus on the new Federal Rules of Civil Procedure
concerning electronic discovery. These Rules will have a
pervasive impact on all federal court litigation.
Modification To The Federal Rules Of
Civil Procedure
The United States Supreme Court recently approved
proposed amendments to Rules 16, 26, 33, 34, 37 and 45 of
the Federal Rules of Civil Procedure. On December 1, 2006,
these modified rules pertaining to electronic discovery will
become enforceable in federal courts. The new Federal Rules
impose strict and broad requirements on civil litigants with
regard to disclosure and production of electronic documents.
The significant changes to these Rules address requirements
for document retention or production of electronic data.
Fed. R. Civ. P. 16: The modifications to Fed. R. Civ. P. 16
are similar to the local rules that have been adopted in many
districts. The new Fed. R. Civ. P. 16 expressly requires the
parties to immediately address electronic discovery issues at
the initial planning conference while developing a discovery
plan for the case. The Parties must immediately isolate
whether (i) electronic discovery issues exist, and (ii) whether
a consultation with the district court is necessary to resolve
any disputes concerning electronic documents.
Fed. R. Civ. P. 26: The modifications to Fed. R. Civ. P. 26
create a two pronged test for the production of electronic
discovery. A party has an obligation to produce all accessible
electronic documents. On the other hand, if the data is "not
reasonably accessible because of undue burden or cost", a
party is excused from production unless the requesting party
demonstrates that there is "good cause" for producing the
data. The seminal decision of Zubulake v. UBS Warburg,
LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I)
established five categories of electronic data with regard to
the difficulty of storage and retrieval. The New York court
found that the following data categories were easily
accessible:
Active, online data
Near-line data
Off-line storage/archives
The court held that backup tapes and erased, fragmented or
damaged data were "inaccessible" and did not need to be
produced absent a demonstration of "good cause." It is
probable that a demonstration of good cause by any party
seeking production of backup tapes or erased, fragmented or
damaged data will be required to (i) either share costs with
the producing party, or (ii) shoulder the entire cost of
production of these documents.
Fed. R. Civ. P. 33: There were few amendments to Fed. R.
Civ. P. 33. The modification simply provides that a party
responding to interrogatories has the privilege of directing
the party who has propounded the interrogatories to
electronic discovery that contains the answer to the
interrogatory.
Fed. R. Civ. P. 34: The revisions to Fed. R. Civ. P. 34
provide:
A party may specifically request the format in which
electronic information is to be produced.
A requesting party may "ask for different forms of
production for different types of electronically stored
information."
A responding party in its sole discretion may select the
form in which the data will be supplied, if not specified by
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the requesting party.
Fed. R. Civ. P. 37: The modifications to Fed. R. Civ. P. 37
concern sanctions for spoliation of evidence. The
amendments provide that a party will not suffer sanctions if
potentially relevant data has been destroyed as a result of
normal business operations.
Absent exceptional circumstances, a court may not impose
sanctions under these Rules on a party for failing to provide
electronically stored information lost as a result of the
routine, good faith operation of an electronic information
system.
Fed. R. Civ. P. 45: The revisions to Fed. R. Civ. P. 45
provide that (i) electronic discovery may be subpoenaed from
non-parties and (ii) the requesting party has the discretion to
identify the format in which the information should be
provided.
Members Of Our London Client
Team
Seattle:
Cathy Spicer - spicerc@lanepowell.com
Brett Anderson - andersonb@lanepowell.com
Gabe Baker - bakerg@lanepowell.com
Mark Beard - beardm@lanepowell.com
Stanton Beck - becks@lanepowell.com
John Devlin - devlinj@lanepowell.com
Dave Hunter - hunterd@lanepowell.com
Robert Israel - israelr@lanepowell.com
Steve Jensen - jensens@lanepowell.com
Mark Johnson - johnsonm@lanepowell.com
Katie Matison - matisonk@lanepowell.com
Barry Mesher - mesherb@lanepowell.com
Laura Morse - morsel@lanepowell.com
Kathleen Nelson - nelsonk@lanepowell.com
Mark Rossi - rossim@lanepowell.com
James Stoetzer - stoetzerj@lanepowell.com
David Young - youngd@lanepowell.com
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Anchorage:
Brewster Jamieson - jamiesonb@lanepowell.com
Portland:
Stephen McCarthy - mccarthys@lanepowell.com
Victoria Blachly - blachlyv@lanepowell.com
Tanya Durkee - durkeet@lanepowell.com
London Client Team
206.223.7000 Seattle
503.778.2100 Portland
LMNews@lanepowell.com
www.lanepowell.com
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Seattle - Portland - Anchorage - Olympia - Tacoma - London
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