Federal E-Discovery Rules: a Work in Progress

It's been four years since the Federal Rules of Civil Procedure were amended to cover electronic information. Many practitioners and judges now say the changes didn't go far enough. A May conference at Duke University School of Law produced new recommendations -- in particular, a revision of the duty to preserve electronic information -- that the Advisory Committee on Rules of Civil Procedure will take up this fall.

The 2006 changes to the FRCP, which added "electronically stored information" as a category of discoverable material, required parties to pay early attention to electronic discovery by including sources of electronic data in their initial disclosures and by addressing e-discovery issues in the first meetings between parties. The 2006 rules also provide some protections, excusing parties from producing e-data that's not reasonably accessible because of undue burden or cost, and carving out a safe harbor provision for electronically stored information lost from routine computer operations.

Did the rule changes help clients and lawyers to grapple with the e-data explosion? Absolutely, says Littler Mendelson e-discovery partner Paul Weiner. They gave litigants tools to address problems such as the volume and dynamic nature of electronic information. But not all practitioners share Weiner's confidence in the current rules.

"There's a frustration from people who don't have the right tools and processes to manage the information and narrow it down," says Mary Mack, corporate technology counsel at the e-discovery service provider Fios. She says the addition of the broad category of "electronically stored information" to the federal rules "blew the doors off what was considered to be open for discovery -- and left attorneys to deal with it." The term has invited overbroad requests, she says.

The consensus from the 2010 Civil Litigation Conference at Duke was for incremental rather than radical change. Many participants called for more judicial management of e-discovery issues, faster rulings, more education for the bar and the bench, and a brighter line around the safe harbor for the inadvertent loss of electronic information, according to Mack, who attended the conference. There was widespread endorsement of the set of principles adopted by the 7th Circuit in its pilot e-discovery program.

Thomas Allman, a former general counsel of BASF Corporation who now co-chairs The Sedona Conference working group on e-discovery, says that although only a low percentage of cases lead to sanctions, fear causes parties to take unnecessary steps. "Your typical outside lawyer advises their clients to err on the side of overdoing things," Allman says. "Instead of just preserving electronic information for five people, you preserve for 55 people."

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Source: law.com
By: Terry Baynes