The changes to are significant. Parties and practitioners need to understand these amendments for active cases, as well as when they find themselves in midst of a dispute that has not yet blossomed into a formal suit. Below is an overview:
· Rule 26(b)(1) has been amended to expressly include electronically stored information (“ESI”) as material that is discoverable. A party is not obligated to produce ESI that is not “reasonably accessible” unless the requesting party can demonstrate a persuasive justification for why it should be collected and produced.
· ESI also includes reasonably accessible metadata that will allow the receiving party to discern “such information as the date sent, date received, author, and recipients.” A party, however, must demonstrate “good cause” to demand the production of other types of metadata from another party. This is a departure from the existing Federal Rules of Civil Procedure.
· A non-party that responds to a subpoena to produce documents under Rule 45 is now obligated to include ESI in its production.
· ESI can be very expensive to collect, review, and produce. Amended Rule 26(b)(3) allows courts the authority and flexibility to shift the costs of electronic discovery between parties depending on the circumstances, the expected relevance of the material sought, and costs involved.
· Amended Rule 26(b)(7) now mandates that parties must produce privilege logs setting out materials withheld on privilege grounds – even absent an express request to do so from another party. On a related note, the amended rule also protects parties from the inadvertent disclosure of privileged materials in that it will not waive the producing party’s privilege.
· Amended Rules 16 and 26(f) creates a new requirement for parties to “meet and confer” to work cooperatively in developing a proposed plan to govern the discovery process. If a party requests it, courts must now enter a discovery scheduling order to set the scope and limits of discovery.