Proposed Federal Rules Amendments Encourage Early Discussion of E-Discovery Issues
E-discovery is the buzzword used to refer to discovery of evidence in an electronic format such as computer data. E-discovery is a new twist on an old flavor, as Federal Rule of Civil Procedure 34 currently treats electronic documents the same as paper documents, as does Tennessee Rule of Civil Procedure 34. The kicker in e-discovery is the cost of retrieving and producing the documents. The expenses can mount quickly when pulling data from an archived source such as backup computer tapes, recreating it in a readable format either on a computer screen or on paper, reviewing the material for relevance and privilege, and finally producing the responsive, discoverable documents. You need tech people who are competent to recover the data without destroying or altering it. You need computer equipment to parse and store the data at various stages in the process. You need attorneys to review the mounds of information to make sure that privileged communications are not tucked away on page 20,536 of 500,000 pages.
Take a look at the proposed amendments to the Federal Rules of Civil Procedure presented by the Civil Rules Advisory Committee last month, a copy of which is available at the Electronic Discovery Law Blog. Under the proposed amendments, e-discovery issues are to be discussed early and often. They become part of the Rule 16 initial case management conference. This is exactly the approach to take now to avoid spiraling litigation costs. At the outset of litigation, take stock of your electronic data repositories: Do all of your client’s employees have laptops that they take with them? Does your client have a written document retention policy, and are there logs related to the scheduled destruction of documents? Does your client own its own IT department, or are the email and file servers located off-site at an independent contractor? Figure out what you have on your end, what you expect on their end, and how to exchange the information and documents appropriately.
Finally, there is no reason for you to ignore the proposed Rules before they go into effect. Except where there is a direct conflict with the existing Rule, the proposed amendments should be persuasive principles to the bench and bar struggling over e-discovery issues.