Opponent Computer Searches Likelier Under Revised Civ Pro Rule
As a number of discovery debacles in recent years make clear, law firms aren’t always as diligent as they should be about helping clients produce all of the electronic material requested in discovery.
Now, however, clients who resist such evidentiary requests may find themselves facing a powerful new enforcement tool: computer search squads. A late 2006 revision of Federal Rule of Civil Procedure 34(a) makes such opposing-party onslaughts more likely. It specifically provides that a party may request court permission to conduct an on-site search of an opponent’s premises for discoverable electronic information, according to the National Law Journal.
Among the material that could be sought by such enforcement squads, the article says, are “any data repository or combination of repositories, including live e-mail systems, archive e-mail files (such as Outlook PST files), laptop and desktop computers, portable backup media, BlackBerrys, USB ‘keychain’ drives, network servers, home directories, shared files and backup tapes.”
A comment by the drafters of the revised rule cites the importance of the materials sought, whether they can be obtained elsewhere, any discovery foot-dragging that may previously have occurred and the parties’ resources as factors to consider concerning such requests for opposing-party searches.
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