eDiscovery Federal Rule 26(b)(2): The Duty of Disclosure

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

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(b) Discovery Scope and Limits.

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

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(2) Limitations.

(A) By order, the court may alter the limits in these rules on the number of depositions and interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.

(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(C) The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties8217 resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).

Rule 26(b)(2) Summary

Parties do not have to produce electronically stored information (ESI) that is not reasonably accessible because of undue burden or cost. If the requesting party shows good cause, the court may still order the production of inacessible documents, subject to certain conditions.

Rule 26(b)(2) Checklist

  •  Confer with your client to determine the cost and expense of producing certain types of data, or archived ESI.

  •  During initial consultations with opposing parties, try to reach an agreement on the definition of what is to be considered "inaccessible."

  •  Pinpoint the subject areas of future requests for inaccessible data.