SIX YEARS ago, I argued in the pages of this Journal that the authors of the Federal Rules of Civil Procedure should take into account how the significant differences between hard copy and electronic information were impacting "both the litigation process and [the] business world." Since then, of course, the Civil Rules Advisory Committee mounted an intense rule drafting effort (2) resulting in the 2006 Amendments to the Federal Rules of Civil Procedure (the "2006 Amendments"). (3)
This article evaluates the efficacy of the 2006 Amendments and the extent to which they should serve as a model for State and District of Columbia rulemaking. A concerted effort should be made to incorporate the 2006 Amendments, especially in light of the practical compromise reached on preservation issues, including the important "gap filler" role played by the Sedona Principles. (4)
An Appendix details the rulemaking efforts in twenty-six states and the District of Columbia.
Pre-trial discovery is essential to the litigation process. As the Supreme Court noted in 1947, (4) "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession."
Of course, the Court conceded in the same case that "discovery, like all matters of procedure, has ultimate and necessary boundaries." (5) Those "ultimate and necessary" boundaries have been severely tested in federal courts by the excesses of electronic discovery resulting from a focus on email in discovery and an excessive quest for duplicative and elusive information regardless of the costs or burdens involved. Although the volume of problems reported by state courts is less, there is no reason to believe that e-discovery issues are likely to be any less vexing there in the future.
No aspect of e-discovery has been more contentious or difficult than the "duty to preserve" as applied to electronic information.
Federal Amendments and the Duty to Preserve
The effort to amend the Federal Rules can be traced to the 1999 formation of a Discovery Subcommittee of the Civil Rules Advisory Committee charged with the responsibility to identify issues peculiar to electronic discovery that might justify rules amendments. As part of that effort, mini-conferences on e-discovery were held at Hastings and Brooklyn Law Schools during 2000 where discussion of the challenges of preservation and spoliation took center stage. There was also a certain amount of "rulemaking" fatigue expressed in light of the number of recent discovery rule changes. (6)
Those of us with ongoing responsibility for major litigation advocated action to identify and clarify preservation obligations. To us, there seemed to be a dangerous disconnection between the way in which courts viewed information management and the way that the business and technical world actually operated. We argued that the fear of sanctions for inadvertent loss of electronically stored information ("ESI") had created an unfair chilling effect and distorted business processes by encouraging over-retention of information. (7)
In December, 2000, for example, I wrote to (then) Magistrate Judge John Carroll, Chair of the Discovery Subcommittee, (8) to suggest adoption of a rule that a party should not be required to suspend the operation of electronic systems which were operated in good faith without a prior court order. (9) I also suggested that only willful violations of preservation orders should justify imposition of sanctions. As far as I can tell, this was the first explicit suggestion for preservation rules or a safe harbor, which I amplified in subsequent articles. (10)
The Discovery Subcommittee met numerous times over the next few years and ultimately developed formulations for including preservation …