Ethical Considerations in Light of the Recent E-Discovery Amendments to the Federal Rules

By Carolyn M. Branthoover and Karen I. Marryshow

Electronic communications and devices have changed the way we live and work. As those changes have occurred, litigants and courts have struggled with the application of traditional discovery rules to ever-evolving forms of electronically stored information. On December 1, 2006, several important amendments to the Federal Rules of Civil Procedure took effect. These amendments explicitly modify discovery procedures to address electronically stored information or “ESI.” In particular, the changes impose express obligations on parties to preserve, disclose and produce ESI. While much already has been written about the direct impact of these changes on the discovery process, lawyers must also consider thoughtfully how the recent amendments affect their ethical obligations.

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