Paul Freehling Quoted in the Chicago Daily Law Bulletin

Paul Freehling comments on the new e-discovery rules in the November 30 issue of Chicago Daily Law Bulletin (New electronic discovery rules boot up Friday).

The new Federal Rules of Civil Procedure provisions detailing the obligations and protections for litigants whose computer-generated documents are sought by their opposing parties go into effect as of Friday, December 1. They cover the duty to disclose the existence of saved computer files that would be extremely burdensome or expensive to retrieve and the ability of a litigant to retrieve from the other side a privileged computer document that was inadvertently sent in response to a discovery request. The provisions protect litigants from sanctions for failing to comply with discovery requests if their computer programs routinely delete the types of information subsequently sought by the opposing party. They also permit attorneys to decline a request for the electronic documents if they can prove that the cost and expense of retrieving and sending them electronically is prohibitive, which would shift the burden to the requesting party to prove to a judge that the documents are essential to its case.

Chicago attorney Paul E. Freehling, a veteran federal court litigator, predicted Thursday that the e-discovery provisions will not increase litigation costs. But the new rules will be a wakeup call for lawyers who have not entered the computer age with regard to discovery requests.

"Every litigation lawyer must read and understand these rules," said Freehling, a partner at Seyfarth Shaw LLP. The rules "certainly brought the subject [of e-discovery] to the top of the pile."