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'Electronic Discovery' Rules May Be Changed

Proposed changes to the Federal Rules of Civil Procedure that address the issue of “electronic discovery” have been approved by a committee of the U.S. Judicial Conference.

The changes must still be approved by the Conference, the U.S. Supreme Court and Congress. They won’t go into effect until Dec. 1, 2006, at the earliest, and could be modified before then.

Under one change, parties in federal litigation could be exempt from judicial sanctions for failure to produce electronically stored data in some circumstances.

To qualify for the exemption, the party would have to show the data was unavailable due to the “routine operation of the party’s electronic information system.”

The change revises Rule 37.

Another amendment would establish a “two-tier” approach to obtaining electronic information.

Under the rule, parties would be required to obtain a court order before gaining access to electronic information “not reasonably accessible to the responding party.”

The change revises Rule 26(b)(2).

A third change would allow a party to retrieve information it had unintentionally provided to other parties during discovery. If the receiving party believed it was entitled to the information, it would have to make its case in court.

The change revises Rules 26(f) and 16(b).

Amendment Postponed

An amendment that would have required courts to permit the citation of opinions designated as “not for publication” or “non-precedential” has been postponed.

Under the proposed “unpublished opinion” rule, a party who cited an unpublished opinion that is not available in a publicly accessible electronic database would have to file a copy of the ruling with the brief in which it is cited.

Opponents argued the proposed change would force judges to spend more of their limited time on routine cases and leave less time to deal with more complex cases.

The committee requested that the matter be sent back to the advisory committee for further consideration.

The new rule would have been Rule 32.1 of the Federal Rules of Appellate Procedure.

The committee has agreed to publish the proposed rules for a six-month public comment period beginning in August.

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