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Better Late Than Never
In response to the pervasive discovery of electronic information, and at the urging of the bar and the bench, the Standing Committee on Rules of Practice and Procedure recently published for comment several proposed amendments to the Federal Rules of Civil Procedure (FRCP).
This welcome proposal has been a long time coming. For years, litigants have struggled with discovering and producing electronic information. Many organizations have undertaken monumental efforts and incurred significant costs trying to meet unclear discovery obligations. Others settle merely to avoid the complex issue altogether. The lack of clear or consistent guidance in the FRCP and in well-developed case law exacerbates the issue, especially for large and medium companies that operate and litigate in multiple jurisdictions. As the Advisory Committee on the FRCP (the Committee) explained in its Report of the Civil Rules Advisory Committee:
As electronic discovery becomes more and more common, the burdens and costs of complying with unclear and consistent discovery obligations, which vary from district to district in ways unwarranted by local variations in practice, will also increase.
Many questions arise when electronic information is sought in litigation, such as:
- What is the scope of the request?
- Where is the responsive information located?
- How can the responsive information be collected?
- How can the responsive information be reviewed to ensure preservation of applicable privileges?
- How will the responsive information be produced?
- How can the production be supplemented for responsive day-forward data?
- How is all potentially responsive information preserved to ensure it is not deleted?
These variables are not unique to e-discovery, but they are significantly complicated by the magnitude and character of electronic information. The sheer volume of electronic information makes discovery more burdensome – more information is potentially discoverable with electronic data than with paper. As the Committee recognized, “Large corporate computer networks create backup data measured in terabytes, or 1,000,000 megabytes: each terabyte represents the equivalent of 500 billion pages of plain text.” (See, Report of the Civil Rules Advisory Committee, 3, quoting The Manual for Complex Litigation, 4th, '11.446.) Complicating matters more, electronic information can be stored in a wide variety of locations and formats, such as network storage devices, workstations, laptops, backup tapes, personal digital assistants and cell phones. The unintentional creation, modification or deletion of electronic information through the actions of opening or moving a file, or turning a computer on or off, also challenges those involved in e-discovery efforts.
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