Recently published proposed federal rules aim to reduce the time and costs of e-discovery, but experts disagree on their likely impact. The opinions range from predicting the amendments will have minimal effect to calling them the most significant changes to the discovery process since the 1993 amendments requiring initial disclosures. On April 12, the Advisory Committee on the Federal Rules of Civil Procedure recommended several rule changes aimed at reducing the burden of e-discovery. In early June, the Standing Committee on Rules of Practice and Procedure approved the rule changes for publication and public comment.
“In large-scale litigation, the savings in costs and time could be significant,” says Robert Ambrogi, attorney and adviser to e-discovery technology vendor Catalyst. On the opposite end of the spectrum, Milberg Senior Counsel Henry Kelston says, “The proposed amendments will do little to reduce the cost of discovery and may well have the opposite effect.”
Many courts have interpreted the current rules as permitting monetary sanctions on a finding of negligence or more significant sanctions like an adverse jury instruction upon gross negligence in electronically stored information (ESI) preservation and collection. However, framers of the current rule intended to provide a “safe harbor” for accepted information management practices aimed at better controlling huge volumes of ESI except in “exceptional circumstances.” But many courts have broadly interpreted the provision for “exceptional circumstances” when awarding sanctions.
“The inconsistency among federal courts on this issue, and the resulting fear of unpredictable sanctions, have driven corporations to incur enormous costs to preserve ESI far beyond any reasonable bounds,” Kelston says.