The Honorable Shira Scheindlin, federal district court judge for the Southern District of New York, went out of her way to slam newly proposed amendments to the Federal Rules of Civil Procedure (Rules) in a recent court opinion and order (opinion). The impact of Judge Sheindlin’s opinion is likely to have a profound effect on the Rules debate given her influence over changes to the original e-discovery amendments in 2006. Not only was Judge Scheindlin a longtime member of the Federal Rules of Civil Procedure Advisory Committee from 1998 to 2005, several of the issues she addressed in her Zubulake line of decisions were incorporated into the current Rules back in 2006 – perhaps explaining how she earned the moniker the Godmother of E-discovery.
Proposed Rule 37(e)
Why are technology and process critical to the proportionality analysis?
The savvy practitioner realizes that there are many factors impacting the overall cost of e-discovery and sometimes incompetence is the biggest culprit. The volume of electronically stored information (ESI) and the amount of litigation an organization handles are key starting points for estimating overall e-discovery costs. However, the costs of e-discovery are significantly impacted by other factors like the technology solutions and process used to manage the preservation, collection, processing, review and production of ESI. Failing to follow a sound process or use modern technology solutions can have a dramatic impact on e-discovery costs and burdens. Understanding whether and how much of those costs and burdens are self-inflicted should be part of any thorough proportionality analysis.