The landscape of electronic discovery is about to undergo major changes that litigators and judges agree are sorely needed. At meetings on April 4-5 in Austin, Texas, the Advisory Committee on Civil Rules (ACCR) decided the Federal Rules of Civil Procedure (FRCP) should be amended to include guidance about the preservation of electronic evidence once litigation is reasonably contemplated or has been filed. Rules about spoliation should also be addressed, the committee noted.
According to Tom Allman, an adjunct professor at the University of Cincinnati College of Law whose legal background includes years as general counsel for BASF, the committee ‘wants the federal rules to reflect the reality of the preservation and production of discoverable evidence.’
When the FRCP underwent a major overhaul in 2006, the ACCR did not address the question of preservation of evidence in the technological age. ‘Just since 2006, however, the committee is rethinking its decision not to rule on the matter,’ says Allman, a staunch proponent of progressive rules of civil procedure, and a regular attendee and speaker at conferences and seminars nationwide focusing on electronic discovery. He is also a well-respected mouthpiece for litigators and judges who cannot attend those events personally but want their opinions about e-discovery heard. At the recent ACCR meetings, Allman shared practical comments from both corporate and outside counsel on how the lack of guidance on preservation issues complicates litigation.
As the FRCP do not directly address preservation, at least not in the age of electronic discovery, parties are expending huge sums of money and time trying to figure out what potential evidence to keep. ‘Some corporations are over-saving or overspending on preservation,’ says Allman. ‘There is currently a lot of dismay and confusion over which standards of preservation to use when litigation is contemplated.’ This is also true when a party has been sued, he adds.
According to Allman, there are three major concerns that complicate litigation in our increasingly technological society. They are:
- Deciding exactly which evidence to preserve
- Deciding when to preserve that evidence
- Fear about not wholly conforming to statutory requirements to provide certain information, and facing sanctions for that behaviour.
There is little doubt that even if electronic discovery concerned itself solely with emails, the task of discerning where to find relevant evidence would still be an extremely daunting prospect. In fact, in a survey on email use conducted by Osterman Research in April 2010, those who work in companies with between one and 500 employees reported receiving an average of 125 emails daily and sending an average of 48. In businesses with more than 500 employees, workers reported receiving an average of 121 emails a day and sending 39.
But because e-discovery is created and stored on countless devices and machines – including smartphones, pagers, digital cameras, laptops and iPads – it is unwieldy and complex, and extends far beyond the simple email.