9 TortSource 1 (2006-2007)

handle is hein.journals/tortso9 and id is 1 raw text is: -I


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At Publication of the


Tort Trial

Fall2006Amercan ar Asocitio

& Insurance

Practice Sectio

UAmerican Bar As~ociation

n April 12, 2006, the U.S. Supreme Court approved the entire package of pending
amendiients to the Federal Rules of Civil Procedure, addressing discovery of electroni-
cally stored information (ESI). The amendments have been transmitted to Congress and
will take effect on December 1, 2006, absent congressional action to the contrary. Such
action is unlikely.
The goal of the amendments is to modify existing discovery rules to better accommo-
date discovery of electronic information. Discovery related to ESI and litigation about its
existence, destruction, production, form of production, burdensomeness of production,
and inadvertent disclosure have spawned a lucrative cottage industry for consultants,
attorneys, and CLE purveyors. They also have created a headache for courts and expo-

Preserving Electronic Materials
A Practical Guide
Maureen Mulligan
uJi has been written about the processes that need to be taken to produce
clcctronically stored materials for litigation. But, before counsel can even get to
t1e point of collecting the information for production, making sure that the evi-
dence has been adequately preserved is imperative. This obligation to preserve
data in electronic form is no different than in paper discovery However, the
swiftness with which electronic documents may be destroyed makes the
process more challenging and demands immediate attention from attorneys as
soon as litigation is anticipated. Failing to preserve electronic materials, even if
continued on page 6

Vol. 9, No. 1
Fall 2006

w .

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