According to a cacophony of surveys, reports and anecdotal evidence, the American litigation system is teetering on the brink of collapse, due in large part to complex electronic discovery issues. One report issued by the American College of Trial Lawyers Task Force on Discovery revealed that many lawyers believe there are serious problems in the civil justice system and that the discovery process, though not entirely broken, is “badly in need of attention.” Based on the survey of nearly 1,500 trial lawyers, the report is consistent with sentiments expressed by many concerned with the cost and complexity of today’s judicial system, particularly those expenses related to e-discovery.
This outcry from many in the legal community has caused a number of groups to consider whether the Federal Rules of Civil Procedure (FRCP) should be amended. The dialogue began in earnest a year ago at the Duke Civil Litigation Conference and picked up speed following last month’s e-discovery “mini-conference” in Dallas led by the Discovery Subcommittee appointed by the Advisory Committee on Civil Rules. The amendment topic is so hot that the Sedona Conference (WG1) spent most of its two-day annual meeting discussing the need for amendments and evaluating a range of competing proposals.
Judge Hedges also noted an amendment might not even be procedurally feasible because the Federal Rules Advisory Committee might be running afoul of the Rules Enabling Act.
“There is a distinction between ‘procedural’ and ‘substantive’ rules. The Rules Enabling Act governs the adoption of the former. Rule 502 of the Federal Rules of Evidence is an example of a substantive rule that was proposed by the Judicial Conference. However, since Rule 502 is a rule dealing with substantive privilege and waiver issues, it had to be enacted into law through an Act of Congress. I am concerned that proposals to further amend the Federal Rules of Civil Procedure may cross the line from procedural to substantive.”
Assuming a party can cross the trigger minefield unscathed, it is then tasked with attempting to determine the scope of the preservation duty. A common challenge is discerning which custodians have potentially relevant information in situations where litigation is “reasonably anticipated,” but the complaint has not yet been served. For many companies, this soothsaying exercise causes them to over-preserve since they aren’t able to narrowly define their pre-litigation preservation requirements.
With the increasingly complex palate of ESI this means an entity might need to preserve data ranging from e-mail to social media, cloud content, instant messaging, structured databases, personal devices and network shared drives even before they have been sued. Particularly for companies behind the curve with their information governance practices, a broad initiative like this can severely tax both the information technology and legal teams for months and conceivably years.