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On Feb. 20 and 21, the U.S. Judicial Conference Committee on Rules of Practice and Procedures and the Advisory Committee on Civil Rules held a conference on electronic discovery at Fordham Law School. Invited guests included a select group of law professors, in-house counsel and private practitioners from different practice backgrounds and communities. The Committee on Rules of Practice and Procedure is chaired by Judge David F. Levi of the Eastern District of California. The Advisory Committee is chaired by Judge Lee H. Rosenthal of the Southern District of Texas. The conference addressed whether there is a need to amend the Federal Rules of Civil Procedure to take into account issues raised by electronic discovery. It also explored specific ideas for possible rule changes. A series of panels examined whether evolving case law or local rules are sufficient to handle electronic discovery issues as they arise, or whether there is a need for national, uniform rules for discovery of electronic data in civil litigation in the federal courts. Although no clear consensus emerged, the outcome was a full discussion of the issues, informed by many different points of view. EVOLUTION OF ISSUES The program began with a presentation on the evolution of rulemaking responses to the issues of e-discovery, along with instruction on the technical aspects of document production and e-discovery. Ken Withers of the Federal Judicial Center described the technology for creating, storing, retrieving, producing, searching and manipulating data. The first possible rule change discussed was to define the term “electronic data” in the context of Rules 26 and 34. Currently, the rules do not define “document” to include electronic data. However, the case law clearly requires electronic data to be disclosed in discovery. While adding a definition would conform the rules to current practice, it may be difficult to devise one that could withstand the test of time. An additional consideration is the treatment of metadata and embedded data: Should there be a distinction between the discoverability of data that is not readily accessible? A panel chaired by Judge Shira Ann Scheindlin of the Southern District of New York discussed these and related issues. E-DISCOVERY COSTS A second panel focused on the tremendous costs associated with production of backup tapes, deleted data and other data that is not ordinarily used by the producing party or is not reasonably accessible. While the costs of such production can be high, the likelihood of locating relevant data can be low. The panel debated the advisability of amending Rules 26, 33 and 34 to make such production the exception rather than the rule, perhaps by requiring the requesting party to show good cause or to bear the expense of production. PRESERVATION AND SPOLIATION The topics of data preservation and spoliation were reviewed in depth. A panel considered whether there should be a safe harbor provision in Rule 37 or elsewhere to protect a party that has put data preservation protocols in place. The duty to preserve data often arises before litigation is commenced and requires difficult decisions as to the scope of documents to be preserved. The panel discussed the difficulty of establishing effective preservation policies and the costs of preserving large amounts of electronic data, particularly back-up tapes. The group discussed the standards that should apply for imposing sanctions for data loss or destruction, and the current state of the case law in this area. Another panel reviewed local rules that specifically address electronic discovery issues. These include local rules in Arkansas, New Jersey, Wyoming and Texas, which address e-discovery with varying degrees of detail. Here, the question was whether local rules were the appropriate format to address e-discovery issues, or whether these issues require uniform, national rules. PRIVILEGED MATERIALS A frequent issue in electronic discovery is the problem of identifying privileged materials in electronically stored data. Creating a privilege log in advance is time consuming and expensive, so some attorneys and courts have agreed to delay assertions of privilege until after the requesting party identifies documents it finds relevant. A panel debated the pros and cons of different approaches to the issue of privileged communications, including the “quick peek” protocol and the inadvertent production rule. The panel also considered whether these issues should or could be addressed in the civil rules process. Finally, two summary panels debated the overriding question of whether rules amendments are the appropriate response to the demands of e-discovery. Alternatives to rules changes include relying on the case law and “private ordering” among the parties. The groups considered the wisdom of amending Rules 16(b) and 26(f) to specifically require the parties to address e-discovery issues in the discovery planning process. No vote or action was taken by the committee at the conference. Whether and if it proposes rule changes remain to be seen. But all in attendance agreed that the discussion was thorough, informative and thought provoking. Carol E. Heckman, a partner at Harter Secrest & Emery in Buffalo and a former magistrate judge in the Western District of New York, participated in the e-discovery conference.

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