2006 Fed Civil Procedure Rules Return E-Discovery to Same Standard
Imposed on Paper Production Says K&F Consulting’s Greg Fordham

            ALPHARETTA, GA—Oct. 23, 2007  –  The days when there was a presumption that electronic data should be treated differently than paper during the discovery process are over.           

"The 2006 Federal Rules for Civil Procedure (FRCP) changes have returned electronic discovery to the same standards long imposed on paper production," said Greg Fordham whose firm, K&F Consulting Inc., provides a variety of e-discovery and computer forensic services to the legal profession.            

According to Fordham two decisions rendered by the District Court for the District of Columbia earlier this year have clarified the accessible versus inaccessible requirement under the new FRCP.           

"In essence the Court said the words in rule 26(b)(2) should be interpreted using their plain meaning and in a manner consistent with long established principles," Fordham said.            

In a February 2007 opinion, Peskoff v Faber, 240 F.R.D. 26, 67 Fed.R.Serv.3d 760, the Court said the producing party has the obligation to search available electronic systems for the information demanded in discovery. There is no presumption that Electronically Stored Information (ESI) is different from any other kind of producible data.            

According to the Court the producing party is relieved of producing specifically identified inaccessible data only upon a showing of undue burden or cost. "This means a functional determination is not relevant. The sole consideration is undue burden or cost," Fordham said.           

The Court also said the producing party must bear the cost of its own production. Cost-shifting does not even become a possibility unless there is first a showing of inaccessibility. Thus, a party is not relieved of its production obligation merely because it may take time and effort to find what is necessary.           

In a second decision in August 2007, Peskoff v Faber, 2007 WL 2416119, the same Court clarified two points seized on by commentators following its initial ruling.

First, the Court said the ready accessibility of information does not in itself require the production of that information. To be discoverable the data must still satisfy the traditional and essential standard of relevancy.            

Second, since there is no presumption that ESI is overly burdensome, a party must object in a timely fashion to producing the data and do more than simply argue to shift the costs to the requesting party.            

According to Fordham the revised rules describe a multifaceted test for determining if the data is producible and whether the costs should be shifted.              

More information on the test and further discussion on this subject is available in Fordham white paper, Accessible or Inaccessible: The Emerging Standard, which may be downloaded without charge from www.knfcon.com/accessible.pdf           

Fordham has written extensively on forensic auditing and e-discovery matters and is an expert witness in many state and federal cases involving e-discovery and computer forensics.  He is a contributing writer for the 2007 Construction Law Update which was published earlier this year by Aspen Publishers and the Georgia Bar Association has approved his e-discovery presentation for CLE credit.
           
About K&F Consulting           

With offices located in the metro Atlanta, K&F Consulting services a nationwide clientele. The firm provides a variety of e-discovery and computer forensic services including database forensics, software forensics as well as the more well known forms of computer forensics. For more information visit www.knfcon.com.