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Electronic Discovery -- Nothing New Except the Rules
Like most lawyers, I recently attended a seminar on electronic discovery.  As Byron Stier at Mass Tort Litigation Blog points out, however, electronic discovery is nothing new: 

Accounts in the popular press seem to have missed the point, suggesting either that the availability of e-discovery is something new . . . Electronic discovery is nothing new.  Skilled lawyers have been requesting information from disks, floppies, CDs, memory sticks, hard drives, back-up tapes, e-mail, Palm Pilots, Blackberries, and cell phones as long as such information has existed.  The rule amendments give a name to a category that previously lawyers simply included in their definition of "document," and the amendments establish a rational set of procedures to apply to ESI.  By spelling out more clearly the applicable rules and by calling attention to ESI, the amendments may increase the amount of e-discovery, and may cause companies and to be more careful in tracking electronic information.  But if anything, the overall thrust of the rules -- particularly the safe harbor of Rule 37 and the presumptive non-discoverability of "not reasonably accessible" ESI -- is toward protecting litigants against unduly burdensome electronic discovery.

Thanks to Sound Evidence, which also has another interesting post on the preparation of IT departments for these new rules.