By Daniel R. Miller, Bree Kelly
The civil litigation landscape is constantly changing as new laws are passed, new rules are promulgated, and new opinions are issued. As in the natural world, some areas are more prone to change than others, and the bedrock of discovery has significantly shifted in recent years. The rumblings began in earnest in the early part of this century, as judicial opinions began to address the significant challenges posed by the proliferation of electronic information in daily life. Then, in 2006, “the big one” hit, and the Federal Rules of Civil Procedure were amended to substantially address the discovery of electronically stored information (“ESI”). Eight years later, the aftershocks of that tremendous shake up continue and new fault lines have begun to emerge, providing clues—and warnings—as to where the next big shifts are likely to occur. In this article, we will identify some of those areas, including emerging standards of competence in electronic discovery, the pending amendments to the rules of civil procedure, and the continuing evolution of the use of technology in electronic discovery, and beyond.
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