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And for you, that may be the most significant part of this story. In 1993, Rule 26 was amended to include the novel requirement of initial disclosure prior to formal discovery, but also amended to provide that each district, and each judge, could opt out of the new rule by local rule, standing order, or on a case by case basis. Approximately one-third of the districts chose to do so by local rule. Another one-third opted out of specific provisions of the new discovery rules or fashioned their own rules, and about one-third opted in. The opt-out is now eliminated. Initial disclosure under Rule 26 is now the uniform national rule. But the new uniform initial disclosure is not the same rule that was written in 1993. There has been a significant modification to the scope of initial disclosure. The 1993 rule required disclosure of all information "relevant to the disputed facts alleged with particularity in the pleadings." Today, we have a new standard for initial disclosure. In Rule 26(a)(1)(A) disclosure is be limited to information "the party may use to support its claims and defenses." The operative term here is "use." The Committee Note defines this broadly: 'Use' includes any use at a pretrial conference, to support a motion, or at trial, The disclosure obligation is also triggered by intended in discovery, apart from use to respond to a document request; use of a document to question a witness during a deposition is a common example.By that definition, the scope of disclosure includes anything you contemplate presenting or discussing, whether or not you plan to enter it into evidence at trial. What does this disclosure obligation mean in relation to computer-based evidence? Judge Carroll will no doubt present his own view, but here's my take, for what it's worth. For the past 15 years, we've lived in the relative luxury of mutual avoidance. Unless opposing counsel explicitly requested computer data in a formal request, and then pressed the request, you could sit back and get away with ignoring it. I submit that will now change. Plaintiff or defendant, as more and more information fundamental to the facts of your case presents itself in electronic form you no longer will be able to hide the computers in the basement under a blanket. You will have to face the problem of computer discovery within 90 days the answer being filed, which is when your obligation to make initial disclosure is due, or handicap your ability to present your case or defense. There are some cases that are specifically exempted from initial disclosure:
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