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will undoubtedly argue over how to satisfy this test. In an arena where technology advances quickly, customary practice is not always easy to define or conform. But parties will certainly have greater freedom to design reasonable “litigation holds” that capture relevant data without undertaking the extraordinary expense of interrupting essential data management programs. Depending on the circumstances, a party may need to place a litigation hold on certain electronically stored information if it appears reasonably likely that the information may be relevant to pending or anticipated litigation, even if that information is not otherwise “reasonably accessible.” 8

In testimony related to the proposed amendments, Exxon Mobil gave a compelling example of the cost savings that could result from this combination of rules.9 As of January 2005, Exxon Mobil had 15,000 active litigations. If it was forced to stop routine recycling its backup tapes, the costs of additional tapes would be about $24 million per year, not including storage and management costs. 10

c. Asserting Claims of Privilege and Work Product Protection After Production

The Rules Committee attempted to reduce review and production costs by giving the option to eliminate a review performed solely to remove privileged material. As stated above, this concern was partially addressed by Rule 26(f) which will require the parties to discuss “issues relating to claims of privilege” at the initial conference. Unless limited by a court order, proposed Rule 26(b)(5) further provides:

“If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.”

Although Rules 26(b)(5)(B) and 26(f) provide for a framework for the recovery of inadvertently produced protected information, the Rules and notes do not address whether the privilege or protection that is asserted after production was waived by the production. This is an area of substantive law that the Rules Committee left to the courts. As noted above, we predict that few litigants in high stakes cases will be offering themselves as guinea pigs.

d. Interrogatories, Requests for Production and Subpoenas Involving Electronically Stored Information

Proposed Rule 33(d) now includes electronically stored information as a subset of business records that may be produced in response to an interrogatory. Proposed Rule 34(a) adds “electronically stored information” to the list of items that are subject to production. As originally adopted, Rule 34 allowed discovery of “documents” and “things.” In 1970, the Advisory Committee noted that the term “documents” also applied to “data compilations” and many jurisdictions have recognized this term to include virtually all forms of electronic data. The need for further clarification is debatable; the Rules Committee noted “a Rule 34 request for production of ‘documents’ should be understood to encompass, and the response should include, 11


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