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14 Rich. J.L. & Tech. 1 (2007-2008)
The Two-Tiered Approach to E-Discovery: Has Rule 26(b)(2)(B) Fulfilled Its Promise?

handle is hein.journals/jolt14 and id is 263 raw text is: Richmond Journal of Law & Technology THE Two-TIERED APPROACH TO E-DISCOVERY: HAS RULE 26(B)(2)(B) FULFILLED ITS PROMISE? By: Thomas Y. Allman* Cite as: Thomas Y. Allman, The Two-Tiered Approach to E- Discovery: Has Rule 26(b)(2)(B) Fulfilled Its Promise?, 14 RICH J.L. & TECH. 7, http://law.richmond.edu/jolt/vl4i3/article7.pdf. I. INTRODUCTION [1] We have now had more than a year to assess the impact of the 2006 Amendments of the Federal Rules of Civil Procedure (the Amendments) on discovery of electronically stored information.1 At the core of these provisions is the two-tiered discovery process.2 Under Rule 26(b)(2)(B),3 restyled as Specific Limitations on Electronically Stored * Copyright © 2008 Thomas Y. Allman. Mr. Allman, a former General Counsel, was an early advocate of federal e-discovery reform and currently co-chairs the Lawyers for Civil Justice State E-Discovery Committee. He is one of the Editors of The Sedona Principles (Second Edition 2007) and can be reached at tyallman@earthlink.net. 1 The 2006 Amendments to Rule 34(a) added electronically stored information as a distinct category of discoverable information to update the 1970 amendments, which had expanded the definition of documents to include data compilations from which information could be obtained by use of detection devices. 2 See Final Report of the Civil Rules Advisory Committee of May 25, 2005 (revised July 27, 2005), at page C-42, included as Appendix C to the September 2005 Standing Committee Report to the Judicial Conference, available at http://www.www.uscourts.gov/rules/Reports/ST09-2005.pdf [hereinafter Final Report (2005)] 3 Fed. R. Civ. 26(b)(2)(B) regulates all forms of discovery but identical provisions were added to Fed. R. Civ. 45(d)(1)(D) relating to subpoenas. The reference to Rule 26(b)(2)(B) in this article refers to both provisions. Volume XIV, Issue 3