ABA Newsletter: Technology for the Litigator

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Prior to the December 2006, amendments to the Federal Rules of Civil
Procedure, the comprehensive Zubulake decisions addressed the
production of electronically stored information (ESI) that was not
reasonably accessible, specifically, backup tapes, using cost-shifting
concepts. The December 2006 amendment to Fed.R.Civ.P. 26(b)(5)(B)
subsequently introduced the concept of “not reasonably accessible
because of undue burden or cost.” As recently noted in P. Rice,
Electronic Evidence: Law and Practice (ABA 2d ed. 2008), 34, “[a]s
hardware and software change, the currently inaccessible (or the
‘difficult to access’), may become accessible. As a result, the
cost-shifting precedent of the past may not be a reliable guide to how
courts will rule in the future.”
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-- 
Bruce White, CRM, PMP
Orange County, CA
e-mail: [log in to unmask]

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