In 2000, Judge Scheindlin warned, “It is safe to predict that federal courts
will see a surge in the number of discovery disputes arising from electronic
discovery.” (Scheindlin, S. Rabkin, J., “Electronic Discovery in Federal Civil
Litigation: Is Rule 34 Up to the Task?” 41 B.C. L. Rev 327, 341 (2000). Six
years later, amendments to the Federal Rules of Civil Procedure established
guidelines for eDiscovery but failed to address preservation.
In 2010, Judge Scheindlin admonished, “By now, it should be abundantly clear
that the duty to preserve means what it says.” (Pension Committee of the Univ.
of Montreal Pension Plan v. Banc of America Securities LLC, et al., 685 F. Supp.
2d 456, 462 (S.D.N.Y. Jan. 15, 2010).
Unfortunately, what should be “abundantly clear” is still
unclear. There are no rules clarifying preservation. The problem is especially
vexing and expensive
because preservation decisions happen so early, well before the parties meet
under Rule 26 or the courts get involved and can limit the scope of discovery.
By the time the rules kick in, the preservation decisions may be irreversible.
Parties trying to decide if and how a lawsuit affects information management
practices, back-up tape rotation practices, or email server policies, must apply
the “better safe than sorry” rule and save unreasonably large volumes of
ESI.
Will it take another 6 years to pass rules on preservation? The Judicial Conference Subcommittee on Discovery recently
made excellent progress at a meeting in Texas identifying some of the problems
created by the hole in the 2006 amendments.
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Source: eDiscovery Myth
By: William Belt 
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