02/01/20082006 Civil Procedure AmendmentsThe 2006 Amendments to the Federal Rules of Civil Procedure are starting to make their effects known in e-discovery cases. In October, a United States District Judge sitting in Delaware denied a motion to compel, in part, because the requesting party did not raise E-Discovery issues during the preliminary conference as required by amended Rule 26(f)(3). In a Hurricane Katrina case here in the Eastern District of Louisiana, ESI was sought from Rimkus Consulting, which had inspected the subject property. Rimkus argued that the requesting party had the burden of showing good cause, but the court found that the responding party "must make an evidentiary showing that the data sought is not reasonably accessible because of undue burden or cost" and that the statement of a lawyer in a memorandum "is not evidence." In the Central District of California TorrentSpy argued that server log data, which is stored in the server's RAM for around six hours, is not "electronically stored information" under the Rules because the data is never fixed on the website or in any media from which it can be reviewed or examined in any tangible form. The court, however, rejected this argument, and concluded, further, that defendants had failed to establish that such data was not "reasonably accessible" due to undue burden or cost. In the Lorraine case, a U.S. Magistrate Judge sitting in the District of Maryland issued a comprehensive opinion discussing the evidentiary requirements for the admission of ESI. In another case arising in the District of Columbia, the court ruled that production of accessible e-data is not subject to cost-shifting, despite alleged "burden", under new Rules. Similarly, in an ERISA case, a U.S. Magistrate Judge sitting in Kansas held that the 2006 Amendments do not alter the basic "undue burden" analysis.