You don’t need to create any documents to respond to this discovery request – just produce copies of what you have.” This common instruction to clients is no longer necessarily true in light of new federal rules governing production of electronically stored information (“ESI”).

Applying the new federal ESI discovery rules, a district court in South Carolina recently held that a party can be required to create new documents for a response to a discovery request absent a showing that the information is not reasonably accessible. KnifeSource, LLC v. Wachovia Bank, N.A., 2007 WL 2326892 (D.S.C. Aug. 10, 2007).

In a dispute about whether a defendant bank reasonably accepted misappropriated checks, the plaintiff sought copies of bank statements. The bank objected, claiming that it did not maintain paper copies of bank statements.

The district court granted plaintiff’s motion to compel discovery of the electronic statements, noting that electronically stored information is discoverable under Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure unless it was “not reasonably accessible because of undue burden or cost.” The bank had not made this showing, so the court ordered it to produce the information that it maintained electronically.

This case illustrates how the new discovery rules for electronically stored information will change common discovery practices and could greatly expand the scope of information that is produced in litigation.