E-Discovery has raised many important issues for litigators and their clients, including evidence integrity, preservation of meta data and its forensic value, recovery of electronic documents from backup tapes, the sheer volume of electronically stored information (ESI) and its impact on the scope of discovery and burden on the parties, and the suitable exchange of electronic
documents.

In December 2006, the US through the Federal Rules of Civil Procedure, introduced wide ranging measures to tackle these issues. Ever since the US courts have adopted these measures. The Federal Rules of Civil Procedure altered the federal litigation expanse by imposing certain strict rules on litigants. The litigants now have to discuss early in the case a range of matters relating to the discovery of their ESI. It also provides for an early discussion of the assertion of privilege claims. The scope of E-Discovery protocol has now changed from how it was earlier dealt with and not dealt with.

Before the new federal rules came into existence, litigants had to deal with issues related to ESI without a specified framework of rules specifying their disclosure and production obligations. Often, due to a lack of refinement of E-Discovery, the requesting parties’ counsel makes responding parties either to ignore their E-Discovery obligations or to run out the clock without providing any significant E-Discovery responses, information or ESI. The prohibitive cost involved in E-Discovery makes parties concerned failing to press the E-Discovery button.

The Federal Rules’ empowerment of federal courts to take charge of E-Discovery protocol matters, puts an end to the old status quo in ESI production. More federal courts (and state courts who rely on federal case law as instructive) are cautioning litigants to negotiate and reach early agreement on what ESI will be produced, when, and how.

The federal litigants who do not detail in advance about the what and how E-Discovery is going to be done and who will pay for it, face the prospect of having an unsympathetic court make those choices for them. This eventually leads to expensive consequences that could have been avoided. With many state courts now citing federal precedent, and with many states now adopting E-Discovery protocol rules similar to the new Federal Rules, this promises to be a real possibility in state court as well.