It’s no secret that the eDiscovery process is time-consuming and expensive – and not just in the obvious sense, such as the costs of having legal teams and forensics experts pour through data, looking for responsive content in electronically stored information (ESI). There’s also the “hidden” costs associated with having to maintain volumes upon volumes of messages and files over extended periods in order to comply with legal requirements, even when an organization isn’t currently undergoing litigation.
Beginning in April 2013, the Civil Rules Advisory Committee began a review to amend the procedures pertaining to the excessive costs and lengthy delays in civil litigation which, not surprisingly, are often the result of the discovery process.
The Committee is the entity charged with establishing unified, nationwide standards for allowing plaintiffs to compel discovery of evidence from the defendant to help prove his case – and vice versa, to allow the defendant to seek evidence from the plaintiff to support the defense. The FRCP also introduced methods to allow judges to urge opposing parties to reach settlements.
For those of us with an interest in the eDiscovery arena, there are two particularly salient goals with the new rules. The first is to increase the degree of cooperation between the court and the opposing parties “to secure the just, speedy and inexpensive determination of every action and proceeding” and limits the overall scope of discovery to what is “proportional to the needs of the case.” This is a clear recognition that costs associated with eDiscovery have been ballooning at a rate proportionate to the increase in electronically stored information itself, and that it makes little sense to spend more resources gathering and searching evidence than either party could expect to gain as a result of the litigation.
The second major goal of the rule changes is to increase penalties for the destruction or deletion of any content that is under litigation hold protection. While a court may not impose penalties on a party for the destruction of electronically stored data under routine practices, any failure to preserve discoverable information in anticipation of or in the midst of litigation is subject to sanctions. A number of factors come into play in determining whether a good faith effort was made to preserve information, including the party’s awareness that litigation was about to occur, the reasonableness of efforts to preserve evidence, and whether the party had received a clear request to preserve data. Exactly what penalties may be imposed are not specifically outlined, since each must be determined in the context of the specific case. These changes are scheduled to take effect in late 2015, although they might not actually be put into practice for years.For more information on proactive eDiscovery or to register for a free trial of Discovery Attender, click here!