Law Tips: e-Discovery Part 2

Parties to litigation cannot ignore e-discovery.  There is no question that electronically stored information (ESI) has become a factor in the process.  The significant impact of e-discovery on today’s business litigation is expertly summarized in Josh Fleming’s opening for his CLE presentation on “Electronic Discovery in Business Litigation.” I am pleased to share a portion of his presentation here on Law Tips:

By now, we are all familiar with Judge Scheindlin’s 2003 decision in Zubalake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.NY 2003), wherein the discovery of electronically stored information (ESI) was forever changed.  As Judge Scheindlin pointed out, the process of discovery is no longer simple due to “rapid technological advances.”  See 217 F.R.D. at 311.  Since Zubalake, we have seen amendments to rules of civil procedure to require the disclosure of ESI and to permit discovery of information and data that is now more prevalent than ever.  With these changes the costs and demands associated with e-discovery have continued to rise, but cannot be ignored or disregarded.

Since 2006, Federal Rule of Civil Procedure 26(a)(1)(ii) requires the disclosure of “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses,….” Fed. R. Civ. P. 26(a)(1)(ii).  Rule 26(b)(2)(B) now specifically addresses limitations on the discovery of ESI and permits a party to object to the discovery of ESI from sources that “the party identifies as not reasonably accessible because of undue burden or cost.”  Id. 26(b)(2)(B).

But, it is the party opposing the discovery on a motion to compel or on a motion for protective order who bears the burden of showing that the information is not reasonable accessible because of undue burden or cost.  Id.  Even then, the court can order access be granted if the requesting party shows good cause. Id.  Rule 34 expressly permits discovery and production of any “electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly of, if necessary, after translation by the responding party into a reasonably usable form.”  Id. 34(a)(1)(A) (emphasis added).

The advisory committee notes on the 2006 amendments leave no question that ESI is discoverable and no different than if a party sought a printed form of the same material:  “Rule 34(a) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents.”  Fed. R. Civ. P. 34, Advisory Comm. notes (2006).  Moreover, the comments acknowledge the likelihood of technological advances and evolution of electronically stored information.  In fact, “[t]he rule covers – either as documents or as electronically stored information – information ‘stored in any medium,’ to encompass future developments in computer technology.” Id.

While the definition of ESI is broad, it remains that what material falls within the definition and should be produced is a separate question addressed under Rules 26(b), 26(c) and 34(b).  Id.  Now more than before, most federal district courts require that the parties address the discovery of ESI during their Rule 16 and Rule 26(±) conferences and some even delineation of a protocol for production of ESI in the parties’ case management plans.

With the advent of e-discovery and the risks associated with failing to comply with rules associated with its preservation and discovery, companies and parties to litigation cannot ignore it.

About our Law Tips faculty member:
Joshua Fleming,Frost Brown Todd LLC, Indianapolis, concentrates his practice in product liability, premises liability and general commercial litigation. He has defended clients around the country in litigation involving product liability and premises liability claims, complex and mass toxic tort claims, as well as prosecuting and defending a variety of commercial claims. He has represented clients in both state and federal courts, and at the appellate level.

We greatly appreciate Mr. Fleming’s contributions to Law Tips.   You can hear his entire presentation as well as his accompanying distinguished panel of experts during the ICLEF Video Replay or Online/On Demand Video of Business Litigation.


Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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