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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - firstname.lastname@example.org - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Friday, May 05, 2006
Where the new FRCP rules fall a bit short... Alextronic was invited by a Magistrate to comment on the new FRCP rules pertaining to ediscovery and a verbatim copy of the Alextronic two-cents follows. Your comments and constructive criticisms are invited....
The Judicial Conference Rules Advisory Committee surmised that the FRCP amendments as proposed aim generally to help the courts differentiate and appropriately treat electronic discovery as opposed to conventional discovery and to "resolve the issues electronic discovery presents". The rules seem to make great strides towards this end, but they can stand room for improvement.
It is somewhat surprising that the US Supreme Court approved without dissent or even analysis, the amendments as they stood at the time of the Court's review. The rules, although commendable on the whole and a substantial improvement over the status quo (,ie, no differentiation between electronic data discovery and paper-based discovery), do not go far enough to protect litigants from facing runaway costs which could stifle the administration of justice. Also, some of the rules tend to be vague and could stand some benchmarks so that certain standards can be established as is explained below.
For example, the amendment on page 38 discusses parties' obligationd to meet and confer pursuant to FRCP Section 37(a)(2)(B). This meeting will certainly help the litigants narrow issues pertaining to how they will exchange digital evidence, but the mandate under the rule goes only to the preservation, production,"translation" and review of data. The rule is, surprisingly, absolutely silent as to how the subject data should be harvested/collected. In fact, the entire sixty page rule makes no reference as to how data should be harvested.
This presents problems because the methodology of data collection can vary drastically. An adverse party can manually open up a pc, for example, and unscrew a hard drive and copy it via a usb cable connection. This method is disruptive and erhaps even rightfully deemed reckless as the target machine is put out of commission for some time and subject to a high likelihood
of irreparable damage. Not to mention, this manual method fails to guard against the inadvertant alteration of metatags leading to claims of spoliation and opening a Pandora's box of evidentiary challenges and law and motion headaches.
Furthermore, the rule offers technological solutions to the review and production of spreadsheets on page 37 citing cost savings attained by using e-discovery tools to avoid the printing of spreadsheets and other such difficult manual tasks.
Curiously, however, the rules remain silent and offer no analysis when it comes to data collection efforts that all parties confronted with e-discovery must undergo. Current technologies allow for a quick, seamless, inexpensive and forensically
sound data harvest while antiquated technologies (or the failure to apply technological solutions to this critical stage of the e-discovery process) can result in despoiled evidence, wasted funds and excessive, needless man hours in the effort to move the data from its original location to counsel for review and then to opposing counsel via production and finally into
evidence before the Court. The failure of the Rules Advisory Committee to consider this crucial step in the discovery of ESI stands out, in the eyes of this author, as a blaring omission that must be remedied. Given the fact that courts in every jurisdiction (Federal as well as State and administrative) have determined which forensic protocols involved in the harvesting of potentially responsive data should be accepted by the court as forensically sound, these conclusion should be interwoven into the FRCP.
Further, along similar lines, the rules do not discuss the benefits of data culling at the point of collection so as to reduce unneccessary hourly and dollar expenditures by parties. The Court in the renown Zubulake IV decision made it clear that a litigant is under "no duty to preserve every shred of paper, every e-mail or every electronic document and every
backup tape... [as] such a rule would cripple large corporations..." This critical and correct holding enjoys no support nor visibility within the FRCP. The use of technologies that can quickly and accurately filter out data which all parties can agree is outside of the purview of that which is germane to the issues at hand should be mandated by the Rule. It is
surprising to this author that the Rule addresses the remedies of inadvertent disclosure of electronic data in great detail and with much aforethought clearly directed towards such remedies yet the preventative steps that will drastically reduce the possibilities of such inadvertent disclosure (culling out that which is non responsive, irrelevant or otherwise clearly
privileged) is given no mention in the Rule.
The new rules provide that electronically stored data which is not "reasonably accessible" does not need to be produced unless the requesting party can show good cause. The rules seem to fail to appreciate that with modern forensic capabilities, it is quite uncommon that data can be deemed truly inaccessible.
It is appropriate that there exists a scienter analysis providing that data cannot be purposefully "made inaccessible" by the party who would benefit from the absence of that data in the court's record. Sanctions for such malicious destruction of evidence are appropriately provided
for in the rules. However, the rules are unclear when it exempts a requirement to produce data which is not "reasonably accessible." Of course, no examples are cited as to what constitutes the terms "reasonable" and "accessible". Based on the technological "savvy" of the producing party, what may be 'reasonably accessible' for one party can vary drastically from that of a dissimilarly situated party. For example, data kept by defendant, IBM, charged with producing ESI contrasted with a defendant restaurant or child care center under a similar obligation will result in a wildly disparate definition of 'reasonably inaccessible data' based on these divergant party's perspective.
The rule provides for a safe harbor from penalties imposed upon a party which allows its ESI to become "lost" or inaccessible due to routine computer usage (,ie, machines rebooted overwriting slack space which may contain deleted data fragments). Forensic technologies can mitigate this data loss and such regular computer usage will, over time, account for less and less inadvertant data destruction as forensic recovery tools continue to improve. This is not to say, however, that the provision of the rule which provides a 'safe harbor'from sanctions for those whose data is rendered inaccessible due to such routine computer usage is not a fair provision.
In sum, the rules in certain areas (outside of the well drafted areas concerning inadvertent production of privileged data and the sections which broadly and appropriately define what constitutes 'electronically stored information') can stand to be better defined and further analyzed. That being said, it appears that amendments to rules 16 and 26 requiring the early meet and confer about the above referenced issues pertaining to e-discovery can serve to ameliorate the criticisms raised above. posted by Alexander | 1:19 AM