Long-sought changes to FRCP being pushed by ACCR
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:
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.
Whether or not the FRCP are amended so that uniform guidelines concerning the preservation of evidence are enacted, corporate legal departments need to establish a viable document retention program, says Patrick Michael, a partner in the Louisville law firm of Dinsmore & Shohl. Even if the FRCP are not changed to include preservation guidelines, ‘there has always been a common law duty to preserve’ relevant evidence, he observes. This means that parties have always had the duty to maintain documents in some organized manner so that if litigation in state court is contemplated or a lawsuit is actually filed, relevant evidence can be produced in a timely fashion.
Document retention programs are important for several reasons. First, says Michael – who is also the chair of the business litigation section of ALFA International, a global network of private practice business-centric law firms – parties ‘will be able to more readily identify what could be potentially related documents so they can be segregated from the general population for the purposes of preservation.’
Moreover, an inability to supply relevant evidence, whether due to a faulty document retention policy or the wholesale lack of one, could result in the imposition of sanctions against the guilty party. In fact, a 2010 Duke Law Review article notes that of 230 sanction awards doled out in 405 sanction cases, a failure to produce electronically stored information was the most frequently punished transgression. In 90 cases it was the sole reason for sanctions; in another 46 it was just one among several punishable offenses committed by counsel.
The pervasive nature of technology and social media contribute to the heightened need for preservation guidelines in the FRCP. For example, says Jay Yurkiw, a commercial and intellectual property litigator with law firm Porter Wright Morris & Arthur, the rules need preservation guidelines to instill ‘uniformity’ regarding preservation obligations and the events that trigger those responsibilities. Yurkiw says the rules should indicate ‘how far back we have to go – for example, do we have to save every version of a website? Do we have to save social media information?’
The next milestone in the process of enacting new civil rules about preservation will occur on September 9, 2011. That’s when the ACCR will convene a one-day conference for plaintiff and defense attorneys, corporate counsel, vendors, judges and the public for the purpose of narrowing the discussions about enacting the preservation amendments. ‘A lot of written comments will be considered, but a small group will address the committee and the gathering to disseminate information,’ explains Allman, who notes that the location has yet to be determined.
Following that, he adds, the ACCR will release the proposed amendments to the civil rules, opening them to public comment, sometime in spring 2012.
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