Electronic Discovery and the Amendment to Rule 26

I came out on the wrong side of this order from one of my cases, but that’s alright; although John Barth’s fictional lawyer in the Floating Opera may have never lost a case, any real life lawyer who tells you the same thing is, well, speaking fiction.

But it is an interesting ruling nonetheless, on a relatively new and important issue, namely the scope of electronic discovery obligations imposed by the e-discovery amendment to the federal rules. This decision by a U.S. magistrate judge presents the factors that should be considered to determine whether electronic discovery should be ordered, or is instead too burdensome to be allowed.

There is also in the decision a little lesson for ERISA governed plans, namely, to make sure that electronic databases and electronic claim files are structured in a manner that allows for easy recall and searching of data, because as this order reflects, the courts will order such searching and production of electronic data if that data is in play in the case, even if the data is stored in a way that makes it very expensive to uncover.