Six years after the Federal Rules of Civil Procedure (FRCP) were first amended to address electronic discovery, another round of amendments is now under consideration. Questions regarding contentious, complex and multifaceted issues such as the duty to preserve, Rule 37 sanctions and technology’s role are among the primary challenges up for discussion. Amidst circuit splits, spiraling costs and ever-evolving technology, finding the right solution is no easy task.
During the federal rulemaking process, the Advisory Committee on Civil Rules holds conferences around the country to solicit viewpoints from the public. These conferences help the committee accurately scope competing interests and opinions on various key issues that need to be addressed by rulemaking efforts. In June 2011, the Discovery Subcommittee— tasked with addressing issues specific to the discovery process in the FRCP—released a number of questions in preparation for the Dallas mini-conference, held Sept. 9, 2011.
The Sedona Conference issued a TSC survey to its Working Group 1 (Electronic Document Retention and Production) members requesting input on these questions for comment. These challenges are echoed in TSC survey results, where 95.1 percent of respondents indicated that preservation issues have become increasingly significant in civil litigation over the past five years. Additionally, respondents indicated that significant preservation issues arose in 91 percent of $1 million plus matters “sometimes,” “often” or “always,” and 80 percent of cases from the respondents needed court intervention to resolve the preservation issue. However, 62 percent of the time the preservation issue did not adversely affect the arguments of the case.
Advents affecting ESI sources are not the only technological concerns that the committee must consider. Fueled by a demand for lower costs and greater accuracy, technology for storing, collecting, processing and reviewing ESI has dramatically improved. This brings tension to the debate over how broadly the duty to preserve should be defined, and whether certain acts of ESI mismanagement are reasonable or reprehensible.