Proposed amendments to the Federal Civil Rules strike a healthy balance: how will the proposed e-discovery rules influence your practice?

• Author: Cortese, Jr., Alfred W.

BY the time you read this article, the proposed amendments to the Federal Rules of Civil Procedure governing the discovery of electronically stored information are likely to have been approved by the Judicial Conference of the United States. The Standing Committee on Rules of Practice and Procedure at the Judicial Conference developed the comprehensive package of rule amendments. After approval by the Judicial Conference, the Supreme Court of the United States will consider the amendments, and, if promulgated by the Court before May 1, 2006, the amendments will take effect on December 1, 2006, unless Congress intervenes.

Approval of the amendments to the procedural rules at the Judicial Conference almost invariably leads to promulgation by the Supreme Court and acquiescence by Congress, but electronic discovery is complex and controversial. Consequently, certain amendments have drawn opposition from some elements of the plaintiff bar and special interest groups. On the whole, however, bench, bar, and academia have supported the amendment package because it is balanced, moderate, and it will provide helpful guidance in a very difficult area. (1)

The amendments are a well integrated package that carefully strikes a balance among a variety of views and in many key areas. While they do not solve all of the problems that attorneys have identified to the Rules Committees, the proposals should help to redress the current imbalance in electronic discovery and should contribute to reducing the burdens, costs, and uncertainty associated with electronic discovery. The amendments should advance the essential purposes of the Federal Rules of Civil Procedure and bring electronic discovery closer to the

mandate of Federal Rule 1 and within the bounds of proportionality and balance toward which discovery has been trending over the past twenty years.

The Standing Committee and its Civil Rules Advisory Committee have heard and examined view points from a wide spectrum of interested parties throughout what has been an intensive multi-year study and debate. The Standing Committee noted in its September, 2005 Report:

The advisory committee first heard about problems with computer-based discovery at a discovery conference in 1996. In 1999, the then-chair laid out the advisory committee's daunting mission to devise "mechanisms for providing full disclosure in a context where potential access to information is virtually unlimited and in which full discovery could involve burdens far beyond anything justified by the interests of the parties to the litigation." The advisory committee began intensive work on this subject in 2000. (2) The Report also points out that many bar organizations, attorneys, computer specialists, and members of the public, "devoted much time and energy in helping the rules committees understand and address the serious problems arising from discovery of electronically stored information." (3) Study of the issues included several conferences that brought together lawyers, academics, judges, litigants, and experts in information technology with a variety of experiences and viewpoints. Indeed, three public hearings were held at which seventy-four witnesses testified and an additional 180 written comments were submitted. Many of the witnesses who testified and wrote comments were IADC members.

Discovery of Electronically Stored Information is Unique

The Report also highlights the unique character of e-discovery, which raises markedly different issues from conventional discovery of paper records. Electronically stored information is characterized by exponentially greater volume than hardcopy documents. Computer information, unlike paper, is dynamic. Merely turning a computer on or off can alter the information it stores. Computers operate by overwriting and deleting information, often without the operator's specific direction or knowledge. Additionally, electronically stored information, unlike words on paper, may be incomprehensible when separated from the system that created it. These and other differences are causing problems in discovery that the rule amendments can helpfully address.

The Rules Committee's lengthy study revealed that the discovery of electronically stored information is becoming more time-consuming, burdensome, and costly. The current discovery rules, last amended in 1970 to take into account changes in information technology, provide inadequate guidance to litigants, judges, and lawyers in determining discovery rights and obligations in particular cases. Developing case law on discovery into electronically stored information under the current rules is inconsistent and is necessarily limited by the specific facts involved. Disparate local rules have emerged to fill this gap between the existing discovery rules and practice, and more courts are considering local rules. Without national rules adequate to address the issues raised by electronic discovery, a patchwork of rules and requirements is likely to develop. While such inconsistencies are particularly confusing and debilitating to large public and private organizations, the uncertainty, expense, delays, and burdens of such discovery also affect small organizations and individual litigants.

The costs of complying with unclear and, at times, vague discovery obligations, which vary from district to district in ways unwarranted by local variations in practice, are becoming increasingly problematic. Unless we amend federal discovery rules to better accommodate the distinctive features of electronic discovery, those rules will become increasingly removed from practice, and similarly situated litigants will continue to be treated differently depending on the federal forum. (4)

Placing Electronic Discovery in Historical...