Susan E. Seabrook, shareholder in our Tax section, was quoted in Tax Notes about how to best use modern search techniques on electronically stored information (ESI) in the discovery process.
The Federal Rules of Civil Procedure were amended effective December 2015 to provide for more cooperation among litigants and to shift the emphasis on the scope of discovery so that it's limited to non-privileged matters that are both relevant to a claim or defense and proportional to the needs of the case. Parties must take reasonable steps to preserve ESI. Part 34.7.1 of the Internal Revenue Manual was updated in February 2016 to also reflect changes to e-discovery.
Susan E. Seabrook of Buchanan Ingersoll & Rooney PC added that discovery disputes that arise might later be decided by how open and candid litigants were with things like terms of art, in addition to how well the parties documented their search processes.
"In this new world there is really no way to get around it," Seabrook said, arguing that "sanctions on the offending party were a real possibility."