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Electronic Discovery and Digital Evidence in a Nutshell - Introduction Outline

Today I purchased a copy of Electronic Discovery and Digital Evidence in a Nutshell, the second edition of the West Academic guide to electronic discovery law in the United Statues authored by Judge Shira Scheindlin (the judge in the Zubulake v. UBS Warburg) and members of the Sedona Conference. This post will be the first in an occasional series providing an outline for this book.


A. FRCP Amendments

1. FRCP 26(b)(1)

a. No reference to subject of the litigation.

b. Scope of discovery proportional to the needs of the case.

i. Importance of Issues at Stake.

ii. Amount in Controversy

iii. Parties' Relative Access to Relevant Information.

iv. Parties' Resources

v. Importance of discovery in resolving issues.

vi. Does Burden outweigh potential benefit?

c. Committee Notes

i. Requesting party does not have burden of addressing all proportionality considerations.

ii. No boilerplate proportionality objection permitted.

iii. Court should make a case specific determination of scope of discovery.

d. Open Issues

i. Does not specify who has burden of proof on proportionality issues.

ii. Costs may be increased because of unilateral determinations that requests are not proportional.

iii. Pre-motion discovery necessary to assess proportionality.

e. Additional Changes

i. Information need not be admissible in order to be discoverable, but no longer needs to be reasonably calculated to lead to the discovery of admissible evidence - now tightly limited to claims or defenses.

ii. FRCP 26(c)(1)(B) - court can allocate discovery costs when granting protective order.

iii. FRCP 26(d)(2) Rule 34 requests served 21 days after compl.; don't need to wait for meet and confer.

iv. FRCP 26(f)(3) - inadvertent production of priv docs; and preservation of evidence must be discussed at first conference.

v. FRCP 37(e) if evidence that should have been preserved - and cannot be restored - court can order measures no greater than necessary to cure prejudice. Party must act with intent to deprive other party of info for adverse inference instruction.

1. Committee Note - Courts should consider sophistication of parties - corporation held to a higher standard than individual.

vi. Court can require premotion conference - would allow resolution on letter submissions rather than full briefing.

vii. FRCP 34(b)(2)(B) and FRCP 34(b)(2)(C) - if party objects to doc request must state grounds with specificity and note if document are being withheld.

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