Link to news posted on U.S. Courts Federal Rulemaking website:

On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.

Unlike other amendments to the federal rules of practice and procedure that take effect unless Congress acts affirmatively to modify, defer, or reject it, “[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.” See 28 U.S.C. § 2074(b).

Link to blog entry posted by Sharon Nelson on Ride the Lightning, December 19, 2007:

Effective on December 1, 2007, the new Federal Rules of Civil Procedure are often referred to as “the style rules” and some lawyers have complacently chosen not to take a close look at them. This way lies a minefield however – you really do need to look at the new rules because both numbering and captioning have been changed in some places, including some of the electronic discovery provisions.  No one wants to make that mistake in a brief. A small number of the rules have been called “style-substance” amendments. Now THAT’s clear as mud. In any event, if you have the old rules, put them aside and work with the new rules, which may be found at http://cfr.law.cornell.edu/rules/frcp/index.html#toc.

E-mail: snelson@senseient.com  Phone: 703-359-0700

Link to news article by Beth Pariseau posted on SearchStorage.com, December 19, 2007:

A year ago, changes to the rules which federal courts use to prosecute civil cases went into effect. Those changes have since resulted in a wave of marketing hype from technology vendors, but only dim awareness among data managers about how the amendments to the Federal Rules of Civil Procedures (FRCP) affect them.

In a recent survey of 500 IT managers and a dozen in-house legal managers, conducted by backup and archiving vendor CommVault Systems Inc., half the respondents said they had been tasked with at least one e-discovery request in the last year. But only 20% were aware of the changes to the FRCP, and 82% responded that their organization had not yet started to address the challenges introduced by the amendments to the rules….

Link to press release: One Year Later, IT Departments Still Struggling to Address FRCP Requirements

OCEANPORT, N.J. — December 11, 2007 — It’s been one year since the US government overhauled the Federal Rules of Civil Procedure (FRCP) on December 1, 2006 in an effort to streamline the electronic discovery of information. A new study conducted by CommVault® (NASDAQ: CVLT), however, highlights some alarming statistics in the preparedness of enterprise companies to comply with these regulations. According to the survey of IT managers, only 20 percent are aware of the amendments governing e-discovery, and only 6 percent of the total respondents have actually implemented a solution to address the issue. The survey suggests that confusion still exists about the rules and that many firms are still struggling to clarify the roles IT departments should play in defining the procedures to address FRCP requirements. Read the rest of this entry »

Link to article by Stephen Whetstone and Michael Simon posted on IndustryWeek, December 7, 2007:

A year ago, the rules that govern litigation in our federal courts were amended to require lawyers and clients to deal head on with electronically stored information (ESI). On December 1, 2006, changes to the Federal Rules of Civil Procedure (FRCP) went into effect. Prior to the amendments, litigants routinely ignored ESI and, operating under a doctrine of “mutually assured destruction,” refrained from seeking it from their adversaries for fear they would be compelled to do the same.

But in the last few years, things changed. Government investigators and plaintiffs’ class action attorneys were not hampered by the same mutuality concerns; they had little to lose and everything to gain by aggressively pursuing ESI. So, Enron, Arthur Anderson, Tyco, Morgan Stanley, and many others were forced to turn over huge amounts of ESI under the glare of the media’s spotlight, spawning more investigations and demands for ESI….

Article by Lloyd B. Chinn posted on Law.com, November 7, 2007:

The shift toward electronic communications over the last 20 years has been well-documented; the courts have been wrestling with the challenges posed by electronic discovery ever since. Not until December 2006 did the Federal Rules of Civil Procedure (”the new rules”) specifically address the unique challenges presented by electronically stored information (ESI). While the new rules brought much-needed attention to these challenges, they also left many questions unanswered. Unfortunately, 10 months later, the decisions interpreting the new rules have raised more questions than they answer….

Press release:  Six Months After Amended Federal Rules Changes Take Effect, Survey Shows Companies Not Prepared for E-Discovery

SAN FRANCISCO, CA May 29, 2007 – Survey results announced today by DiscoveryBox and Strategic Discovery, Inc. reveal that 83 percent of technology decision makers are not prepared for litigation under the amended Federal Rules of Civil Procedure — because their companies do not have a comprehensive document preservation system. The survey was conducted with 336 senior technology executives at EMC World, EMC Corporation’s technology users’ conference held in Orlando, Fla. from May 21 through May 24, 2007. Read the rest of this entry »

Article by Leonard Deutchman posted on Law.com, May 25, 2007:

The recent changes to the Federal Rules of Civil Procedure require litigants to have early discussions to address issues relating to the disclosure and production of electronically stored information. In the last several articles I have used preparing for the “meet-and-confer” as a model for understanding and addressing your case’s e-discovery issues. Issues not settled through the meet-and-confer will go to the court at the pretrial conference or after.

Read the rest of this entry »

Article by Reza Alexander, DLA Piper UK LLP, posted on Strategic Risk, April 2007: Reza Alexander believes that new US electronic disclosure rules herald a wake up call which will reverberate throughout the rest of the world.

Globalisation means that European-based multinationals cannot ignore the effects of US legislation. Anyone who doubts this needs only to look at Sarbanes-Oxley. So the recent amendments to the US Federal Rules of Civil Procedure (FRCP), which came into effect on 1 December 2006, will have a far reaching effect on how electronic records are managed within most organisations….

Article by Reza Alexander, DLA Piper UK LLP, Feb. 14, 2007: The recent amendments to the US Federal Rules of Civil Procedure (FRCP), which came into effect on 1 December 2006, will have a far reaching impact on how electronic records are managed within most organisations according to Reza Alexander, DLA Piper UK LLP.

Under the new rules most corporations will now be obliged to operate and enforce an enterprise wide, resilient and consistent records management program.

As remote as they may seem to practitioners outside the USA these rules are worthy of serious consideration. Lessons can be learned on how organisations should proactively handle the proliferation of electronic documents and ensure they have effective policies and procedures in place not only to respond effectively to disclosure obligations but also to successfully manage the flow, storage and retrieval of information. Read the rest of this entry »