"As is well known by now, the Federal Rules of Civil Procedure were amended, effective Dec. 1, 2006, to address certain issues relating to the discovery of electronically stored information, or ESI.
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Among the most important amendments, however, is the requirement that litigants discuss ESI at their initial discovery planning conference. The Committee Note to Rule 26(f) explained that 'discussion at the outset may avoid later difficulties or ease their resolution.'
Specifically, Rule 26(f) was amended to require litigants to discuss three additional items during their initial conference.
First, in developing a discovery plan, litigants are required to discuss and incorporate the parties' views on "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced."
Second, the parties are required to discuss "any issues relating to preserving discoverable information."
Third, the parties need to discuss and include in their discovery plan 'any issues relating to claims of privilege or of protection as trial-preparation material, including - if the parties agree on a procedure to assert such claims after production - whether to ask the court to include their agreement in an order.'"