September 24, 2008     03:00pm - 04:00pm Eastern

On December 1, 2006, the Federal Rules of Civil Procedure were amended to add a new Rule 26(b)(2)(B), which limits discovery of electronically stored information (ESI) from sources "that the party identifies as not reasonably accessible because of undue burden or cost." This newly-articulated limitation on the scope of discovery might have raised more questions than it answered, however. How does one define "not reasonably accessible?" When and how does one fulfill the "identification" obligation? How does a responding party show that a source is "not reasonably accessible?" How can a requesting party overcome the limitation and demonstrate "good cause" for an order to produce information from this source?

Perhaps most perplexing is a question that is not answered by the Rules at all: What is the duty to preserve sources of ESI that are "not reasonably accessible?" The Advisory Committee Note to Rule 26(b)(2) provides that "[a] party's identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence." Moreover, the Note to Rule 37(e) instructs that parties may not "exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve."

The Sedona ConferenceŽ Working Group 1 recently published a Commentary on the issues of preserving, managing, and identifying "NRA ESI," as it has come to be known. The Commentary went through several drafts and was subjected to the signature "dialogue" process, during which leading jurists and practitioners contributed their observations. The result is a five-step framework for analysis and six Guidelines for making reasonable, good-faith assessments where no "bright line" rules exist.


Pricing:

$79 Working Group Members of The Sedona Conference^®

$99 General Public

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