Post Process

Everything to do with E-discovery & ESI

Case Blurb: Benefirst; Applicability of FRCP Amendments to Case filed Prior to Enactment

Posted by rjbiii on December 28, 2007

The Order of the Supreme Judicial Court of the United States adopting this amendment to Rule 26 provides that such amendments “… shall take effect on December 1, 2006, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” This case was filed before December 1, 2006 and the instant dispute arose before the effective date of the amendment. At the same time, the case is still in the discovery stages. Furthermore, in briefing the issue, the parties have cited to the seven-step analysis for determining whether or not to shift the cost of production proposed by Judge Scheindlin in Zubulake. The notes to the 2006 Amendment to Rule 26 to a large degree adopt Judge Scheindlin’s seven-step analysis for purposes of determining whether a party should be required to search for and produce information that is not reasonably accessible. See Fed.R.Civ.P. Advisory Committee’s note to 2006 Amendment. Under these circumstances, I find that it is just and practicable to apply the recent amendments to Rule 26 to the instant dispute.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

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