Federal Judicial Center

Managing Discovery of Electronic Information - Third Edition Federal Judicial Center

This third edition of the pocket guide on managing the discovery of electronically stored information (ESI) reflects the December 1, 2015, amendments to the Federal Rules of Civil Procedure and the reasons for the amendments described by Chief Justice Roberts in the 2015 Year-End Report on the Federal Judiciary: (1) encourage greater cooperation among counsel; (2) focus discovery-the process of obtaining information within the control of the opposing party-on what is truly necessary to resolve the case; (3) engage judges in early and active case management; and (4) address serious new problems associated with vast amounts of electronically stored information. 1 The prevalence of ESI led to the December 1, 2006, amendments to the Federal Rules of Civil Procedure. Those amendments have been the bedrock for countless decisions in the U. S. courts. In 2008, Federal Rule of Evidence 502 was adopted to, among other things, address the consequences of inadvertent disclosure of ESI on claims of attorney-client privilege and work-product protection. The third edition also reflects the rise of new devices on which ESI is created and stored, such as smartphones, and new sources of ESI, such as social media. It updates judges on how ESI may be searched. It also suggests case-management techniques that judges might use in smaller civil actions in which the costs of ESI discovery could hamper resolution on the merits. This pocket guide is organized into a question-and-answer format, which we hope judges will find useful in meeting the challenges presented by the discovery of ESI as it becomes a routine feature in litigation.