New Frontiers in E- Discovery: Help May Be on the Way

04.02.12 | Permalink

By: J. Richard Caldwell

The digital revolution in our society has fostered sea changes in the lives of both individuals and companies. Among the less beneficial aspects of this phenomenon has been the literal explosion of discovery in the area of electronically stored information (ESI). Companies now have the ability to store vast quantities of data; problems arise when litigation looms and questions are presented concerning what must be preserved, when, and for how long.

Amendments to the Federal Rules of Civil Procedure were promulgated in 2006, in an attempt to deal with the problems presented. These amendments, unfortunately, amounted to little more than tinkering, and did not address the underlying issues. Since then, efforts have been ongoing to advocate meaningful changes to the federal rules, to curb the worst discovery abuses, and reduce the monstrous expense involved in these efforts.

Decisions such as the Zubulake series, (e.g., Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004), known as “Zubulake V”), and Pension Committee of the University of Montreal Pension Plan v. Banc of America, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), have created unrealistic preservation duties, and imposed draconian sanctions for even seemingly minor divergence from these judicially-created standards. In light of this, most risk-averse companies follow the path of overpreservation for fear of crippling sanctions, preserving far more information than may actually be necessary to comply with any litigation discovery obligations. The excessive costs of this overpreservation have, it has been argued, acted to stifle company initiatives, and created a drag on business efforts in general.

Lawyers for Civil Justice (LCJ), the Federation of Defense and Corporate Counsel (FDCC) and the Defense Research Institute (DRI), have proposed new amendments to the federal rules, seeking to create a more reasonable discovery framework. These amendments would, if enacted, accomplish the following:

1. restrict the scope of discovery generally to facts and documents relevant to claims or defenses in the particular case;

2.  promulgate clear guidelines, to the effect that a duty to preserve ESI (as well as other types of materials) commences only when there is a reasonable certainty of litigation;

3. set forth clear limitations on the types of ESI normally discoverable;

4. provide that the requesting party should normally pay the expenses of production; and

5. restrict the imposition of discovery sanctions to instances involving willful destruction of evidence, and demonstrable prejudice.

The details and ramifications of these proposals of course cannot be adequately addressed in a short paper such as this. See the following links to the effort to bring the federal rules into line with reason and justice:

Now is the Time

Microsoft Letter to Judge Campbell

The Time is Now

Hill, Tom. Testimony at Hearing on Costs and Burdens of Civil Discovery.

The United States Congress has shown an awareness of the problem, as evidenced by the recent letter from Rep. Trent Franks to Judge David C. Campbell and Judge Mark R. Kravitz, urging action on rules reform Representative Franks’ letter here.

This effort is building momentum, and with support from business organizations and the defense bar, we will see it come to fruition. Rumberger, Kirk and Caldwell lawyers have been active in this fight. Bert Spence of the firm’s Birmingham office, and Dick Caldwell of the Tampa office, are among those who have conducted research, co-authored papers and made presentations to engender active support for the project. We urge everyone who reads this to strongly support this endeavor.

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