BY the time you read this article, the proposed amendments to the Federal Rules of Civil Procedure governing the discovery of electronically stored information are likely to have been approved by the Judicial Conference of the United States. The Standing Committee on Rules of Practice and Procedure at the Judicial Conference developed the comprehensive package of rule amendments. After approval by the Judicial Conference, the Supreme Court of the United States will consider the amendments, and, if promulgated by the Court before May 1, 2006, the amendments will take effect on December 1, 2006, unless Congress intervenes.
Approval of the amendments to the procedural rules at the Judicial Conference almost invariably leads to promulgation by the Supreme Court and acquiescence by Congress, but electronic discovery is complex and controversial. Consequently, certain amendments have drawn opposition from some elements of the plaintiff bar and special interest groups. On the whole, however, bench, bar, and academia have supported the amendment package because it is balanced, moderate, and it will provide helpful guidance in a very difficult area. (1)
The amendments are a well integrated package that carefully strikes a balance among a variety of views and in many key areas. While they do not solve all of the problems that attorneys have identified to the Rules Committees, the proposals should help to redress the current imbalance in electronic discovery and should contribute to reducing the burdens, costs, and uncertainty associated with electronic discovery. The amendments should advance the essential purposes of the Federal Rules of Civil Procedure and bring electronic discovery closer to the
mandate of Federal Rule 1 and within the bounds of proportionality and balance toward which discovery has been trending over the past twenty years.
The Standing Committee and its Civil Rules Advisory Committee have heard and examined view points from a wide spectrum of interested parties throughout what has been an intensive multi-year study and debate. The Standing Committee noted in its September, 2005 Report:
The advisory committee first heard
about problems with computer-based
discovery at a discovery conference in
1996. In 1999, the then-chair laid out
the advisory committee's daunting
mission to devise "mechanisms for
providing full disclosure in a context
where potential access to information
is virtually unlimited and in which
full discovery could involve burdens
far beyond anything justified by the
interests of the parties to the
litigation." The advisory committee
began intensive work on this subject
in 2000. (2)
The Report also points out that many bar organizations, attorneys, computer specialists, and members of the public, "devoted much time and energy in helping the rules committees understand and address the serious problems arising from discovery of electronically stored information." (3) Study of the issues included several conferences that brought together lawyers, academics, judges, litigants, and experts in information technology with a variety of experiences and viewpoints. Indeed, three public hearings were held at which seventy-four witnesses testified and an additional 180 written comments were submitted. Many of the witnesses who testified and wrote comments were IADC members.
Discovery of Electronically Stored Information is Unique
The Report also highlights the unique character of e-discovery, which raises markedly different issues from conventional discovery of paper records. Electronically stored information is characterized by exponentially greater volume than hardcopy documents. Computer information, unlike paper, is dynamic. Merely turning a computer on or off can alter the information it stores. Computers operate by overwriting and deleting information, often without the operator's specific direction or knowledge. …