Amending the FRCP: More Questions than Answers

http://ow.ly/6YK52

An article Dean Gonsowski posted on the clearwellsytems.com website on the e-Discovery 2.0 blog.

This article discusses the push to try and amend the Federal Rules of Civil Procedure due to the ever increasing impact of eDiscovery.  The rules were amended in 2006 but there are many that feel that eDiscovery is too costly, and that the rules regarding preservation of electronically stored information need to be further revised.

The article states, "The dialogue began in earnest a year ago at the Duke Civil Litigation Conference and picked up speed following an eDiscovery “mini-conference” held in Dallas last month (led by the Discovery Subcommittee – appointed by the Advisory Committee on Civil Rules). The rules amendment topic is so hot that the Sedona Conference (WG1) spent most of its two day annual meeting discussing the need for amendments and evaluating a range of competing proposals." The article provides links to various items referenced by the author.

The article makes 5 points that illustrate some difficulties involved with trying to create new rules, which in the opinion of the writers of this blog boil down to:

1. What really needs to be changed?;
2. Is preservation an issue caused by eDiscovery rules or just due to increased amounts of ESI?;
3. Is the issue just that the current rules aren't being followed?;
4. Is technology being used correctly to assist?; and
5. Does changing the Federal rules do enough to help those that face various State rules, and other rules?

The author provides wise advice in conclusion, "Given the range of divergent perspectives, differing viewpoints on potential solutions and the time necessary to navigate the Rules Enabling Act, the only thing that’s clear is that the cavalry isn’t coming to the rescue any time soon. This means that organizations with significant preservation pains should endeavor to better utilize the rules that are on the books and deploy enabling technologies where possible."  A link to the Rules Enabling Act is also provided in the article.