The Two-Tiered Approach to E-Discovery: Has Rule 26(b)(2)(B) Fulfilled Its Promise?
![handle is hein.journals/jolt14 and id is 263 raw text is: Richmond Journal of Law & Technology
THE Two-TIERED APPROACH TO E-DISCOVERY: HAS RULE
26(B)(2)(B) FULFILLED ITS PROMISE?
By: Thomas Y. Allman*
Cite as: Thomas Y. Allman, The Two-Tiered Approach to E-
Discovery: Has Rule 26(b)(2)(B) Fulfilled Its Promise?, 14 RICH J.L. &
TECH. 7, http://law.richmond.edu/jolt/vl4i3/article7.pdf.
I. INTRODUCTION
[1] We have now had more than a year to assess the impact of the 2006
Amendments of the Federal Rules of Civil Procedure (the Amendments)
on discovery of electronically stored information.1 At the core of these
provisions is the two-tiered discovery process.2 Under Rule
26(b)(2)(B),3 restyled as Specific Limitations on Electronically Stored
* Copyright © 2008 Thomas Y. Allman. Mr. Allman, a former General Counsel, was an
early advocate of federal e-discovery reform and currently co-chairs the Lawyers for
Civil Justice State E-Discovery Committee. He is one of the Editors of The Sedona
Principles (Second Edition 2007) and can be reached at tyallman@earthlink.net.
1 The 2006 Amendments to Rule 34(a) added electronically stored information as a
distinct category of discoverable information to update the 1970 amendments, which had
expanded the definition of documents to include data compilations from which
information could be obtained by use of detection devices.
2 See Final Report of the Civil Rules Advisory Committee of May 25, 2005 (revised July
27, 2005), at page C-42, included as Appendix C to the September 2005 Standing
Committee Report to the Judicial Conference, available at
http://www.www.uscourts.gov/rules/Reports/ST09-2005.pdf [hereinafter Final Report
(2005)]
3 Fed. R. Civ. 26(b)(2)(B) regulates all forms of discovery but identical provisions were
added to Fed. R. Civ. 45(d)(1)(D) relating to subpoenas. The reference to Rule
26(b)(2)(B) in this article refers to both provisions.
Volume XIV, Issue 3](ViewImageLocal?handle=hein.journals/jolt14&div=19&collection=journals&method=preview&ext=.png&size=3)
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The Two-Tiered Approach to E-Discovery: Has Rule 26(b)(2)(B) Fulfilled Its Promise?
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