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Computers have become weapons of mass discovery. The proliferation of computer technology in the past two decades has brought with it a sharp rise in discovery disputes over which electronic data must be disclosed and which are simply too expensive or burdensome for defendants to produce. The rising chorus urging electronic discovery reform has brought proposed amendments to the Federal Rules of Civil Procedure that may curtail a lawyer’s ability to read digital jottings over the shoulder of an opponent. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, the policymaking arm of the courts, wants the new rules to take into account the increasingly paperless world of computer documents without handing either side a club to bludgeon the other. A variety of local rules on electronic discovery have sprung up in a few federal courts in New York, New Jersey, Kansas and Delaware, raising the potential of a welter of differing standards as the concept spreads. Even state courts have begun to get into the act. The Conference of Chief Justices has electronic discovery under review in a special committee. Only Texas, Mississippi and Illinois have approved special electronic discovery rules, while California is monitoring the federal changes with an eye toward following their lead. But sharp differences have emerged. Texas and Mississippi call for shifting the cost to plaintiffs for any extraordinary efforts required by the defense to recreate computer documents. The Illinois rule creates a presumption that electronic data will be turned over in paper form. In San Francisco earlier this month, the Judicial Conference’s Committee on Rules opened the first of three national public hearings to solicit concerns about its four most controversial changes proposed. The changes would: � Create a two-tier discovery system that would curtail access to electronically stored data that is “not reasonably accessible,” Rule 26(b)(2). � Obligate the responding party to identify broad categories of withheld documents considered inaccessible, such as data on backup disks created for disaster recovery or stored on outdated systems, Rule 26. � Create a safe harbor protection for companies against sanctions for data lost through routine operation of computer systems, Rule 37. � Shift some costs to plaintiffs for production of a defendant’s data deemed necessary but “not reasonably accessible.” A less contentious amendment to Rule 26(f) calls for parties to meet early to discuss preserving discoverable information. Battle Lines Drawn The battle lines seemed clearly drawn. “There is no bigger cost in litigation today than electronic discovery,” said Michael K. Brown, a partner in Reed Smith’s Los Angeles office who represents pharmaceutical firms in products liability suits. Attorney J. Walter Sinclair of Stoel Rives’ Boise, Idaho, office said that one of his clients in a herbicide crop damage case has spent $1 million so far on discovery. And in a smaller case, a client spent $100,000 to recover digital documents in a case he said was “worth about $500,000.” Plaintiffs attorney Jocelyn Larkin of the Berkeley, Calif.-based Impact Fund, which helps nonprofit groups engaged in public interest litigation, countered: “The way the system is working now is fine.” Judges should continue to determine whether a discovery request is unduly burdensome, Ms. Larkin said. “I feel like we are being steamrolled by the defense bar.” James Finberg, a partner at Lieff Cabraser Heimann & Bernstein of San Francisco and president of the Bar Association of San Francisco, pointed to the New York securities fraud case against high-profile telecommunications analyst Jack Grubman. Discovered e-mail drove the case, Mr. Finberg noted. A rule making e-mail inaccessible would have killed it, he said. For plaintiffs lawyers, e-mail may be the best thing ever invented � a record of unguarded musing between co-workers. “In many cases, it can be enormously probative. That’s how business is conducted now, people don’t put things in writing,” Mr. Finberg said. “I have one message for those who say there is no problem: They are flat wrong,” said Bruce Sewell, general counsel and vice president of Intel Corp. “They don’t litigate in today’s world.” Millions of E-Mails Take the concerns of Microsoft Corp. The company receives as many as 300 million e-mails a month from the outside. Internally, the company sends and receives up to 90 million a month. The company’s Redmond, Wash., data center generates 150 to 200 backup tapes a day to hold about 15 terabytes of data. Just one terabyte can hold 500 billion typed pages. Greg McCurdy, Microsoft counsel in Seattle, applauded the plan to create a two-tier system of discovery designating readily accessible data in active use as presumptively discoverable. But harder-to-retrieve documents would be classed “not reasonably accessible,” shifting the burden to the requesting party to show good cause to force release. Mr. McCurdy said that abuses of safe harbor protections are unlikely. Civil rights and employment law require data preservation, and the new Sarbanes-Oxley Act criminalizes improper document destruction with 20-year sentences, he said. “It would be insanity beyond belief to get rid of something that would come back and bite us like that.” To clear what she called “the fog of war,” Joan Feldman of Seattle’s Computer Forensics, a specialist in computer systems and electronic discovery, urged the committee to force early meetings to resolve what data should be preserved and how to target truly probative documents. Only a handful of court decisions set conditions for electronic discovery. U.S. District Judge Shira A. Scheindlin of the Southern District of New York, who is a member of the rules committee, wrote a series of rulings in one of the leading cases, Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). She ordered severe sanctions for e-mails lost or produced late due to a bungled preservation process. The next hearing will be in Dallas on Friday and in Washington, D.C., on Feb. 11. The public has until Feb. 15 to submit written comments to the Civil Rules Advisory Committee. Amendments must be approved by the Standing Committee on Civil Rules, the Judicial Conference and the Supreme Court. The earliest they could take effect is December 2007. Pamela A. MacLean is a San Francisco-based staff writer for the National Law Journal, a Law Journal affiliate in which this article first appeared.

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