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FRCP Electronic Discovery Amendments: Understanding the Impact

By Mary Mack
April 26, 2006

When Judge Scheindlin ruled in a landmark case and made the statement 'that's going to be the most expensive curse word you ever said,' little did she realize the prophetic nature of her words. I am not sure whether Judge Scheindlin knew how 'codified' her electronic discovery rulings would become when she issued her opinions (five times, no less in Zubulake v. UBS Warburg). She probably could not have foreseen the resulting cost and risk impact on corporations faced with defending lawsuits containing (as part of the pool of potential evidence) large volumes of electronically stored information (ESI).

We are now at the brink of the 'codification.' The (amended) Federal Rules of Civil Procedure (where the Zubulake standards are extremely influential) governing electronic discovery will go into effect in December 2006. Even now, courts from Kansas to Maryland are using those new rules as guidance for decisions in cases today, several months before the rules actually take effect. [Editor's Note: The U.S. Supreme Court officially approved the amendments on April 12 ' a move seen as a formality, but a necessary step in the approval process.]

To prepare for this codification, organizations need to understand the implications of certain aspects of the new Federal Rules, assess their operational gaps, and optimize their processes to close these identified gaps and be better prepared. These steps are critical because all organizations, large or small, have litigation risk. The rules will have different impacts depending on a company's risk profile. Just remember, Zubulake was a single-plaintiff employment action.

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