Addressing State E-Discovery Issues through Rulemaking: The Case for Adopting the 2006 Federal Amendments

By Allman, Thomas Y. | Defense Counsel Journal, July 2007 | Go to article overview

Addressing State E-Discovery Issues through Rulemaking: The Case for Adopting the 2006 Federal Amendments


Allman, Thomas Y., Defense Counsel Journal


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.

I. E-Discovery

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 obligations in the discovery rules. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Addressing State E-Discovery Issues through Rulemaking: The Case for Adopting the 2006 Federal Amendments
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.