The proposed amendments to the Federal Rules of Civil Procedure are now published and on the top of everyone's reading list. For those who want a review of the proposed amendments and what they mean for electronic discovery, here is my article appearing in the September 2004 issue of The Federal Lawyer, published by the Federal Bar Association. I claim no copyright on this version of the article and you have permission to copy and distribute it within your firm, include it in your CLE materials, or link to it from your web site (with proper attribution, of course).

Other people, including members of the federal judiciary, have been contributing more important (and probably better written) items to the growing body of literature on electronic discovery:

• Tom Allman, former General Counsel of BASF Corporation, has written two pieces recently on electroninc discovery. The first is a memorandum to the Sedona Conference Working Group on Electronic Document Retention and Production, comparing the proposed amendments to the Federal Rules of Civil Procedure to the Sedona Principles, dated October 6, 2004. The second is an article exploring Zubulake V and the limitations of sanctioning power under proposed Fed. R. Civ. P. 37(f): "Ruling Offers Lessons for Counsel on Electronic Discovery Abuse," Washington Legal Foundation Legal Backgrounder, Vol. 19, No. 34 (October 15, 2004).
• Hon. Ron Hedges' (U.S. Magistrate Judge, District of New Jersey) has updated his comprehensive outline of electronic discovery rules and case law through September 2004, Discovery of Digital Information.
• One of the oft-cited advantages of electronic discovery is the ability to automatically "de-dupe" large e-document collections before review for relevance or privilege. The process involves applying an algorithm to the data collection which identifies and removes "duplicates" of emails and other documents, thus dramatically reducing the numbers of unique documents to be reviewed. But there may be dangers to this and other routine e-discovery practices, as digital forensic accounting technologist Jack Seward points out in his latest article from the American Bankruptcy Institute Journal, "Protecting Yourself Against E-Illiteracy: Avoid Being Duped." George Socha of Socha Consulting responds to Jack with a different view of deduplication.
• Annotated Case Law and Further Reading (updated August 1, 2004).
• National Institute of Justice, Forensics Examination of Digital Evidence: A Guide for Law Enforcement. According to one of the contributors, "a select group of computer forensics practitioners met over a three-year period to develop this comprehensive guide for law enforcement. Although the guide, part two of a six part series, was developed for law enforcement, the procedures, techniques, and guidelines are equally applicable to the collection and examination of digital evidence in civil litigation."
• Two important surveys fall into the category of "it's worse than you think" when it comes to corporate and government agency self-awareness that electronic records management and electronic discovery represent a potential problem. The Electronic Records Management Survey was conducted by Cohasett Associates, in cooperation with the ARMA International and AIIM. Free registration is required for download. The second study, conducted by the American Management Association and The ePolicy Institute, concentrates on workplace email and instant messaging, but comes to essentially the same conclusion: "employers are ill-prepared to manage email and instant messaging risks."
• Electronic Evidence and Discovery: What Every Lawyer Should Know by Michele C.S. Lange and Kristin M. Nimsger. "This practical guide is designed to arm lawyers with relevant information, tools, and knowledge including:
  • The difference between electronic and paper evidence
  • Computer forensics v. electronic discovery: how the two disciplines impact the practice of law
  • Emerging law: common law, rules, and statutes addressing electronic evidence
  • Requesting electronic evidence in litigation
  • Responding to electronic evidence requests in litigation
  • Working with an e-evidence expert and more
  "The book also contains numerous charts, rules and statutes relating to electronic evidence, case law, sample forms, and secondary resources."
• The Sedona Principles (released January, 2004) and Observations on "The Sedona Principles" (released April, 2003).
• Report and Recommendations of the Joint Administrative Office of the U.S. Courts/Department of Justice Working Group on Electronic Technology in the Criminal Justice System (2003).