Will New Electronic Discovery Rules Save Organizations Millions or Deny Justice?

http://ow.ly/7nmTP

An article listing Ben Kerschberg as contributor, and referred to as a special post by Matthew Nelson, Esq. appearing on Forbes.com website.

This article discusses the current activity surrounding efforts to possibly revise the Federal Rules of Civil procedure again to address eDiscovery obligations.

The article states, "For some, the discussion feels like déjà vu “all over again” considering the Rules were amended in 2006 to address electronic discovery (“eDiscovery”) challenges in a world where paper documents were once the norm. In fact, the 2006 Rule amendments not only clarified that ESI is discoverable in today’s era of electronic information, they provide a framework for addressing eDiscovery that forces parties to develop a proposed discovery plan and discuss “any issues related to disclosure or discovery of electronically stored information. . . .” Fed. R. Civ. P. 26(f)(3)(C)."

The article provides some discussion regarding proposed changes to the rules that are being discussed, and also references the Sedona Conference, and the guidelines offered to courts and litigators by that organization.

In addition, the article states, " Some have also expressed concern that drafting new Rules that are “substantive” in nature as opposed to “procedural” could run afoul of the Rules Enabling Act and ultimately be overturned. (See A Judicial Perspective: Q&A With Former United States Magistrate Judge Ronald J. Hedges Regarding Possible Discovery Related Rule Changes, Clearwell 2.0, Sep. 9, 2011)." A link to the referenced Act and referenced article are provided.

The article also discusses the impact that technology is having upon the situation. The author states, "...more and more enterprises are relying on archiving technology solutions that enable the organization to automate the deletion of irrelevant data instead of saving data forever. This proactive approach to data management helps control downstream eDiscovery expenses since less data means less processing and attorney review time, which saves money.

Given the rapidly growing adoption of these kinds of modern technology solutions, many contend that allowing organizations to benefit from being technology laggards would be contrary to public policy. The rationale is that the Rules should not encourage organizations to forgo investing in readily available technology solutions and then hide behind the Rules to gain strategic legal advantages during eDiscovery."

Furthermore the author writes, "In order to make sure the Rules continue to promote the interests of justice for all parties, the Advisory Committee must consider all major factors contributing to the financial burdens some parties experience during eDiscovery. That means evaluating whether and to what extent the failure by some organizations to embrace modern archiving and eDiscovery technology is contributing to the high costs at issue. Otherwise, failure to properly consider the role of technology and other important factors may lead to Rule changes based on an incomplete analysis of the problem – a result that may not only lead to unintended consequences, but one that could also result in injustice"