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Arguing over e-discovery amendments

The debate over whether the Federal Rules need to include more guidance on e-discovery

The Federal Judicial Advisory Committee has created a discovery subcommittee to determine whether amendments to the Federal Rules of Civil Procedure (FRCP) are needed to provide more guidance to companies and relieve some of the burden of e-discovery.

There are two sides to the argument, and “this entire debate is about money,” says Matthew Nelson, e-discovery counsel for technology provider Symantec Corp. Many organizations feel that they are overpreserving information, which leads to increased costs when they have to review that data down the line. They want an amendment that lets them know when the duty to preserve information is triggered, and how much they have to preserve, so they don’t lose as much money.

There is already some guidance in place, however, in the form of the 2006 amendments to the FRCP, which say that both parties in a dispute have to sit down and agree on the scope of discovery. “In many cases, it seems that parties just aren’t following that procedure, and judges are not necessarily enforcing that kind of dialogue,” Nelson says. Those who oppose new amendments think that if companies followed the existing guidelines, many of their concerns would be eliminated.

What’s more, Nelson says he thinks it should be taken into account whether companies that are complaining about e-discovery’s high cost are using technology to aid the process. “You wouldn’t triple your child’s allowance for not doing his chores,” he says. “Why should judges reward organizations that have poor information governance practices or that fail to use modern e-discovery technology?”

The discussion is still in its early stages, and no formal proposal exists yet. The discovery subcommittee is scheduled to meet again this fall, but a proposed amendment will likely not be published until spring 2013.

For more InsideCounsel on the FRCP amendments, read:

Preservation Problem (from the June 2012 cover story)

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