Image courtesy of Georgetown Law
A wide-ranging discussion about e-discovery and the Federal Rules of Civil Procedure highlighted Friday morning's sessions at the Georgetown Law Center Advanced eDiscovery Institute.
The panel, "Future of the Rules/New Developments," included federal judges Joy Flowers Conti, of Pittsburgh, Paul Grimm, of Baltimore, and Lee Rosenthal, of Houston, along with attorneys William Butterfield of the Hausfeld law firm and Jeane Thomas of Crowell & Moring, both of Washington, D.C.
"Take our brains back to what the e-discovery world was a generation ago -- the late 1990s," Rosenthal began. Rules at the time were "the stuff of giant controversy," she noted, taking 20 years to mold and still being abstract and limited. "In the early 2000s we started looking really hard at e-discovery and we all had to go to school."
"The last time the rules were amended to take technology into account was in 1974 when the words data and data compilation were added," Rosenthal continued. Now that sounds quaint. Therefore, "we knew in 2006 [ when the rules were updated] that we were not finished with e-discovery," she said.
Now, the focus is on a FRCP e-discovery subcommittee, the members of which hope to have a rules proposal by March 2012, Grimm said. Whether that will be delivered on time may be determined in a conference call this week. There is also a congressional hearing on Dec. 13, added Butterfield, who is among the scheduled witnesses.
Even if a proposal moves forward, it certainly won't be perfect, but, "when your last name is Grimm, you tend to think in terms of fairy tales," Grimm quipped, drawing laughs. The audience also enjoyed his story of Spoliataurus Lex -- the fire-breathing dinosaur that destroys documents.
Thomas added numbers. Microsoft, she said, collects 17.5 GB per custodian, averages four custodians per matter, has 329 matters on hold (a third of them are active cases), and collects more than 700 MB for every 2.3 MB that are actually used. Those kinds of figures, along with controversial cases such as Pippins v. KPMG, can put fear in the hearts of large companies, she said. However, she doesn't "favor a very, very detailed rule," because techology moves too fast for such a rule to keep up.
Yet there are little-to-no studies providing empirical evidence for designing rules at all, Butterfield said -- only anecdotes. Just a small amount of cases reach the point of having sanction motions, he noted. "RAND tried to compute the cost of preservation. They couldn't do it," he said.
Conti added another point of view: Perhaps no new rules are needed at all if the goal is always just to be reasonable.
For judges and lawyers debating this topic, "the good news is, it's really fun," Rosenthal concluded. "The bad news is, it's really hard."
Evan Koblentz is a reporter for Law Technology News. Send e-mail.
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Philip Favro
Judge Rosenthal’s discussion regarding the process and prospect for rules amendments was particularly compelling. As Judge Rosenthal explained, there is no guarantee that amended rules will even be issued. To the extent amendments are agreed upon, they would likely be broad in their scope and would not provide “bright line” guidance that many practitioners seek. Moreover, it would be several years still before any such amendments would be implemented. Given these factors, organizations must be prepared to address document preservation and production under the instant Rules regime for the foreseeable future. Counsel and clients alike must be more cooperative in litigation and follow best practices with respect to preservation and production. And as multiple panels from conference sessions made clear, that means getting the right technology in place to strengthen information management and eDiscovery processes.
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