Image by UpstateNYer
On Dec. 13, the U.S. Congress will hear testimony about prospective e-discovery-related additions to the Federal Rules of Civil Procedure -- the first such hearing since the rules were last updated in 2006.
The hearing, entitled "The Costs and Burdens of Civil Discovery," was originally scheduled for Nov. 16. Rep. Trent Franks, R-Ariz., chairman of the Subcommittee on the Constitution, will lead the hearing, which is intended to update the House on recent developments among FRCP committees of the Federal Judiciary and on witnesses' individual senses of which rules work, which do not, and which need modification.
Scheduled witnesses include William Hubbard, assistant professor at the University of Chicago Law School, and Rebecca Love Kourlis, executive director of the University of Denver's Institute for the Advancement of the American Legal System, both of whom spoke this week with Law Technology News.
Hubbard and Love Kourlis both agreed that rule changes are necessary, as the volume of electronically stored information increases faster than lawyers and the e-discovery software industry can keep up.
However, "I don't know what kind of questions I'm going to be asked, to tell you the truth," Hubbard said. "I don't think it's something that has attracted a lot of attention from Congress in the past."
"I do think there is a need for this process to occur. I do think there is room for meaningful improvement relative to the current state of affairs [and] the current law on issues like preservation," Hubbard added. "There's been a lot of talk about a new sanctions rule. But it's my understanding that a lot of rules about trigger and scope are still on the table."
Meanwhile, "The focus of my testimony will be on the problems that discovery poses in general as they have been exacerbated in the past by electronic discovery," Love Kourlis said. "We have proposals for rule changes, and we have proposals for caseflow management changes ... The opportunity that I see in this hearing is just to make the members of the subcommittee aware of the fact that this is becoming an increasingly serious problem," especially for small businesses, which aren't able to compete against deep-pocket litigants, she said.
William Butterfield, of the Washington, D.C.-based Hausfeld law firm, and Thomas Hill, senior counsel with General Electric, are also scheduled to testify. Neither could be reached for comment.
More information about the hearing is available at the Lawyers for Civil Justice site.
Evan Koblentz is a reporter for Law Technology News. Send e-mail.
Subscribe to Law Technology News
-
Craig Ball
Here are some questions and answers that ought to be heard (but won't be): Congress: You've told us that lawyers can't seem to handle this e-discovery. Are they trained for something so crucial to their practice? Witness: Not in practice, as there are no older with knowledge to hand down. Not in law school, because there are only a handful of optional courses that really don't teach the technology. And not by the Bar, although lawyers have heard plenty of 45 minute CLE sessions telling them there are some new (five year old) rules. Congress: But surely the lawyers themselves are recognizing that their limited ability to understand information technology lies at the heart of the problem? Aren't they trying to get up to speed? Witness: Certainly not. Lawyers have taken no appreciable steps to master information technology. They don't want to, and feel they shouldn't have to because they already studied the law. Knowing one thing should be enough, right? Even those handful that do deign to seek out information have almost no place to go to gain a relevant grounding in technology. Congress: So, we should take steps to limit access to the most relevant evidence to spare the bar the chore of learning to apply the existing rules as the commentary describes? Witness: What else can we do? Wait for an asteroid to wipe us out? Remember: We went to law school so we wouldn't have to study science or math! Congress: And, you want us to change the laws and make more rules so the lawyers don't have to adapt, even though the world has changed and evidence is overwhelmingly digital today? Witness: Yes. It will save billions in further monies lost to lawyer incompetence while allowing lawyers to retain their influence--all while making it harder for parties who want to come to court to resolve grievances. See, it's tort reform in a new wrapper...and as likely to draw fat campaign contributions from business PACs. Congress: Thank you. I don't know ESI from CSI, but PAC I understand.
Comments are not moderated. To report offensive comments, click here.
Reader Comments