A wide-ranging discussion about e-discovery and the Federal Rules of Civil Procedure highlighted Friday morning's sessions at the Georgetown Law Center Advanced eDiscovery Institute.
The panel, "Future of the Rules/New Developments," included federal judges Joy Flowers Conti, of Pittsburgh, Paul Grimm, of Baltimore, and Lee Rosenthal, of Houston, along with attorneys William Butterfield of the Hausfeld law firm and Jeane Thomas of Crowell & Moring, both of Washington, D.C.
"Take our brains back to what the e-discovery world was a generation ago -- the late 1990s," Rosenthal began. Rules at the time were "the stuff of giant controversy," she noted, taking 20 years to mold and still being abstract and limited. "In the early 2000s we started looking really hard at e-discovery and we all had to go to school."
"The last time the rules were amended to take technology into account was in 1974 when the words data and data compilation were added," Rosenthal continued. Now that sounds quaint. Therefore, "we knew in 2006 [ when the rules were updated] that we were not finished with e-discovery," she said.
Now, the focus is on a FRCP e-discovery subcommittee, the members of which hope to have a rules proposal by March 2012, Grimm said. Whether that will be delivered on time may be determined in a conference call this week. There is also a congressional hearing on Dec. 13, added Butterfield, who is among the scheduled witnesses.
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Source: law.com
By: Evan Koblentz
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Judge Rosenthal’s discussion regarding the process and prospect for rules amendments was particularly compelling. As Judge Rosenthal explained, there is no guarantee that amended rules will even be issued. To the extent amendments are agreed upon, they would likely be broad in their scope and would not provide “bright line” guidance that many practitioners seek. Moreover, it would be several years still before any such amendments would be implemented. Given these factors, organizations must be prepared to address document preservation and production under the instant Rules regime for the foreseeable future. Counsel and clients alike must be more cooperative in litigation and follow best practices with respect to preservation and production. And as multiple panels from conference sessions made clear, that means getting the right technology in place to strengthen information management and eDiscovery processes.
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