Posted May 11, 2009
The amendments to the Federal Rules of Civil Procedure pertaining to electronically stored information went into effect on December 1, 2006. If you needed me to tell you this, you’ve stumbled into the wrong blog.
This change marked only the seventh time since 1938 that the rules have been amended. The mean time between amendments to the Federal Rules of Civil Procedure is just under ten years. Amending the rules is not a step taken lightly.
Some things from the 1930's are very enduring
The effort that went into these amendments is obvious from reading the Commentary that accompanies them. It spanned six years; it consumed hundreds of hours of hearings, countless meetings, and submissions from the best and brightest of bench, bar, and think-tanks like The Sedona Conference; each of these submissions in turn represents tremendous devotion of time and thought by their respective presenters.
My point? That this was a tremendous collective effort by the body vested with the statutory authority to promulgate the rules (28 U.S.C. § 2073) and by the professional groups providing input to the committee.
Yet just past the two year mark, an organization that did not exist at the time the new rules were being debated is now calling for a radical overhaul of the Rules of Civil Procedure. That organization is the Institute for the Advancement of the American Legal System (IAALS), founded in 2006. It is affiliated with the University of Denver.
In March 2009 the IAALS issued its report titled: “Final Report On The Joint Project Of The American College Of Trial Lawyers Task Force On Discovery and The Institute For The Advancement Of The American Legal System.” Click here to download a copy.
Top billing in the title goes to the older organization, the American College of Trial Lawyers, founded in 1950. To anyone who has practiced litigation in the United States or Canada, as I have, the ACTL is enormously prestigious. Invitation to membership is a pinnacle in the career of any barrister in North America.
There are 29 boldface bullet points. (The authors did not number them). If you think of this as a bag of candy, among these 29 candies there are two or three that are either the best candies of them all – or they are chunks of jagged glass.
In general terms, the majority of the recommendations call for:
- Proportionality as the governing principle for all discovery. We have some provision for this in R. 26(b)(2)(C).
- Broader initial automatic disclosures, meaning broader than currently required under Rule 26(a)(1).
- Early meet and confer to discuss preservation and storage electronically-stored information. This is the subject of Rule 26(f).
- A good faith duty to preserve electronically stored information, but not to the unreasonable extent that parties must take every conceivable step to preserve all potentially relevant electronically stored information; this is substantially Sedona Principle 5.
- Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes. This is pretty much the “not reasonably accessible” provision of R. 26(b)(2)(B).
- Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness. A higher misbehavior threshold than the current Rule 37(e), but no real cause for indignation on the plaintiff side of the bar.
- The cost of preserving, collecting and reviewing electronically-stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases. In other words, no change from what we have right now. “Although there is no specific cost-bearing provision in the present Federal Rules of Civil Procedure, courts in cases involving a range of issues… have recognized that Rule 26(b)(2)(C) provides the inherent authority to shift the costs of discovery to the requesting party or apply the concept of proportionality.” Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence, §7.4 at p. 7-75 (2nd Ed.)
As noted in blue above, some of these points are already addressed in the amended rules; others are are stated in the Sedona Principles, or in the Sedona Cooperation Proclamation, and some are even voiced in recent court decisions. Nevertheless, they benefit greatly from a fresh restatement; all the better when that comes from an organization as respected as the ACTL or as energized as the IAALS. 
Few would argue against these points. The IAALS and the ACTL feel compelled to sound these trumpets because we still have far too much discovery cost, delay, and gamesmanship.
So now we get to the bullet points that are either the best bonbons in the bag, or they are chunks of jagged glass. That’s the subject of the next post.
