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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Friday, November 04, 2005

The laws they are a changin'  

It should come as little surprise that (finally) the Federal Rules regarding evidence used at trial (FRCP and FRE) as well as most state rules (,ie, the California Code of Civil Procedure and the California Evidence Code as well as the Alabama Code and others) are finally getting into the "nitty-gritty" as far as language reflecting the reality of electronic evidence is concerned.

Some notable changes that will play a key role appear in revised statutory materials as well as "pending" statutes recently promulgated by "advisory committees" such as the Standing Committee of the Judicial Conference and the Civil Rules Advisory Committee. Groups such as the Sedona Group and the George Socha project (can't recall what he calls his new club off hand) may also prove significant enough to be heard and contribute to the formation of these new statutes.

What changes can we expect?

I don't think you will see litigator's continue to tremble when asked to produce legacy data from Univac circa 1962, TDKSE90's or Wang Mainframes that churned out reports at 2 ghz as Grease was playing at a theater near you. No more holding your breath as you search E-Bay for the Sun Tape Drive produced between 1982 and 1984.

Why? Because the proposed amendments to Federal Rule of Civil Procedure 26(b) will require production of electronic data which is reasonably readily available "without excessive burden or costs" - of course lawyers will argue that reasonable minds may differ as to what constitutes excessive burden/costs, but I tend to think that any efforts to revive any technology pre Flock of Seagulls and Iran-Contra would be deemed a bit too troublesome.

Some other rules such as 16(b)(5) have already had a face lift so that they explicitly include electronic records within their purview. Rule 26(f) brings electronic data into the meet and confer and mandatory settlement processes, so those depos and yellow pads may now only tell half the story. Rule 26(1) will now require an affirmative disclosure of electronic files that are germane to the dispute to follow the longstanding federal rule 37 which has required such of physical evidence such as paper and the shell casings...

California has broadened the definition of discovery via CCP Section 2017.710 so that electronic document depositories and e-mail are specifically named. This helped me recently help a friend win a case against a plaintiff who was playing hide the ball as if he was trying to hide Anna Nicole Smith behind Paris Hilton.

Then there is an entire slew of new rules (both recently revised and proposed) that penalize those who intentionally destroy relevant and potentially damaging (to the destroyer) data including erasing but not including inadvertant erasure by starting/stopping one's PC. This probably should have ben called the Kenneth Lay amendment.

Even more exciting is the new case law both at the Federal, State and Administrative Court levels. I will save this for another Blawg entry, but I can assure you that all you Blawgerheads will be quite intrigued as to how many different courts have landed with respect to the same issue. Toshiba vs. Zubulake are no longer the big dichotomies out there...

By the way, your very own Alextronic will be speaking twice in the next few months (the 6th of December from 5.30 to 9.00 at the LA County Bar) and again for the California State Bar on January 27th through the 29th at the Loews in Santa Monica). Hope to see some of you there.

posted by Alexander | 11:58 PM

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