A Proposal for Preservation Rule Amendments

http://ow.ly/72LZU

An article by William Wallace Belt on the e-Discovery Myth website of LeClair Ryan.

This article discusses the current Federal Rules of Civil Procedure and the present push to try and revise them.  The author argues that perhaps simply adding the word "preserve" in the proper areas of the current rules is the only revision that is necessary.

The article states, "In 2010, Judge Scheindlin admonished, “By now, it should be abundantly clear that the duty to preserve means what it says.” (Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities LLC, et al., 685 F. Supp. 2d 456, 462 (S.D.N.Y. Jan. 15, 2010).

Unfortunately, what should be “abundantly clear” is still unclear. There are no rules clarifying preservation. The problem is especially vexing and expensive because preservation decisions happen so early, well before the parties meet under Rule 26 or the courts get involved and can limit the scope of discovery."

The author goes on to state that it will take 6 years to approve any new rules.  The author goes on to state that the current rules may not require as much revision as suggested by some, and he highlights the current rules as follows, "Under the rules:

• Inaccessible ESI is off limits. Producing parties may identify inaccessible data sources and then exclude those sources from production.
• The Rule 26 “proportionality” balancing test applies specifically to producing ESI, and if the burden or expense of production outweighs the likely benefit, the party need not produce it.
• Under Rule 37, sanctions may not be awarded for good faith loss of ESI."

P.S.  The author's of the Litigation Support and Technology News blog believe that technology allowing data to be assessed prior to the collection process will assist in reducing preservation costs and obligations, irrespective of any changes to the Federal Rules.