Federal Rule of Civil Procedure 26(a)(1) requires disclosure of documents, data compilations and other tangible things that the parties may use to support their claims, defenses or damages computations.
Although FRCR 26(a)(1) requirements are seemingly straightforward, the process of identifying and locating responsive documents and data has become more complex as people and companies continue to shift their information transmission and storage functions from paper to electronic media.
Rule 26(f), planning conference, was modified to provide for a discussion of the issues related to electronic discovery, privilege assertion, and preservation. The following are examples of the types of issues and topics that should be discussed at this conference:
- Which information systems will potentially be involved in discovery;
- Any anticipated claims of “not reasonably accessible;”
- Information retention policies;
- The form, or forms, of production desired;
- If metadata should be preserved and produced;
- Discovery-limiting features, such as search terms and date ranges;
- What would be considered reasonable preservation;
- Issues relating to claims of privilege.
As a result of these changes and the increasing complexity of technology, attorneys must now frequently call upon eDiscovery and Computer Forensic Experts to assist in the preservation of electronic information at the outset of litigation, as well as in the gathering of documents responsive to Rule 26(a)(1) and other discovery requests.