Recent amendments to the Federal Rules of Civil Procedure apply to all cases filed after December 1, 2006 and “insofar as just and practicable” to all pending proceedings. These amendments formalize existing authority and best practices regarding the procedures for discovery of electronically stored information and place a premium on being proactive, practical and transparent.

The rules make it essential for lawyers to understand a company’s computer network and systems. They must also understand the various forms of document production such as native files, TIFF, PDF and so on, as well as a client’s preferred way to produce and receive documents. These new burdens must be shouldered in order to take advantage of the standards set forth in the new rules, such as the reasonable accessibility of electronically stored information and the “safe harbor” from sanctions.

Scott Kane, partner in Squire Sanders’ Cincinnati office, notes, “Businesses will need to work closely with their counsel at an early stage, prior to litigation, to discuss the accessibility of all potential sources of discoverable information. Businesses must ensure that counsel does not commit them to costly or indefensible positions because of a failure to understand the client’s data systems.”

He adds that it’s important to maintain perspective about how the standards interact with the specific case, not your technology. “What might be ‘reasonably accessible’ in a US$100 million patent case is not necessarily ‘reasonably accessible’ in a US$100,000 contract dispute.”

Therein lies the strength of the new rules – they encourage measured, appropriate behavior without inflicting undue burdens. To take advantage of these rules, however, businesses and counsel must be prepared.