The Yale Law Journal


A Few Thoughts on Electronic Discovery After December 1, 2006

30 Nov 2006

Editor's Note: On December 1, 2006, electronic discovery amendments to the Federal Rules of Civil Procedure go into effect. In this seven-part series, Judge Lee H. Rosenthal, chair of the Judicial Conference's Advisory Committee on Civil Rules, offers an introduction to the new amendments and describes challenges they present for lawyers, litigants, and judges.

The last time the Federal Rules of Civil Procedure were amended to acknowledge computers was 1970, when the words “data and data compilations” were added to Rule 34. Thirty-six years later, long after the computer has become both ubiquitous and essential, it is time to do much more. On December 1, amendments will go into effect to make the discovery rules better able to accommodate the vast changes in information technology that have already occurred and that will inevitably continue.

The need for the guidance the e-discovery rule amendments provide is reflected in the fact that courts have been applying the new rules since they were proposed, years before their effective date. Because the amendments have to be flexible enough to apply to all federal cases that could involve electronic discovery and general enough to accommodate the inevitable changes in information technology, there are a number of issues the new rules do not address. Instead, the rules present procedures and guidelines targeted at the distinctive features of electronically stored information, to help resolve those issues when they arise. In this seven-part series, I discuss a few issues likely to arise under the new rules and the challenges they may present, not only for lawyers and litigants, but for judges.