Inside The Rules

Most litigators and others connected to the activities of e-discovery agree that electronic discovery issues are complex and expensive. This premise is partially echoed in the report of the Civil Rules Advisory Committee. The Committee said on pages 2, 7 and 8 of its report that discovery of electronic information “is “more burdensome, costly, and time-consuming” than traditional discovery. The report also noted that:

There is great uncertainty as to whether and when a party may continue some or all of the routine recycling or overwriting functions of its computer system without risk of sanctions. Suspension of such operations can be prohibitively expensive and burdensome, and can result in the accumulation of duplicative and irrelevant data that must be reviewed and produced, making discovery more expensive and time-consuming. (See also, pp. 3, 17 of the report, and pp. 11 and 18 of the proposed amendments.)

The proposed rules take on issues of accessibility and adequate preservation, as well as the burden and cost of review. In addition, the proposed Rule 26(f) change calls for a discovery planning conference by the parties to discuss electronic discovery issues. To some extent, unfortunately, the proposed rule changes lag behind technological advances in business environments. For example, in the very early years of electronic discovery, there may have been occasions where draconian measures were taken to restore data ' particularly backup data. In recent years, however, it's no longer necessary to restore every backup tape or blindly restore “sample” tapes.