Tackling E-Discovery In The Federal Rules Of Civil Procedure
by Tami Kamin-Meyer on May 9, 2011 from the Business Insider: The landscape of electronic discovery is about to undergo major changes that litigators and judges agree are sorely needed. At meetings on April 4-5 in Austin, Texas, the Advisory Committee on Civil Rules (ACCR) decided the Federal Rules of Civil Procedure (FRCP) should be amended to include guidance about the preservation of electronic evidence once litigation is reasonably contemplated or has been filed. Rules about spoliation should also be addressed, the committee noted.
According to Tom Allman, an adjunct professor at the University of Cincinnati College of Law whose legal background includes years as general counsel for BASF, the committee ‘wants the federal rules to reflect the reality of the preservation and production of discoverable evidence.’
When the FRCP underwent a major overhaul in 2006, the ACCR did not address the question of preservation of evidence in the technological age. ‘Just since 2006, however, the committee is rethinking its decision not to rule on the matter,’ says Allman, a staunch proponent of progressive rules of civil procedure, and a regular attendee and speaker at conferences and seminars nationwide focusing on electronic discovery. He is also a well-respected mouthpiece for litigators and judges who cannot attend those events personally but want their opinions about e-discovery heard. At the recent ACCR meetings, Allman shared practical comments from both corporate and outside counsel on how the lack of guidance on preservation issues complicates litigation.
As the FRCP do not directly address preservation, at least not in the age of electronic discovery, parties are expending huge sums of money and time trying to figure out what potential evidence to keep. ‘Some corporations are over-saving or overspending on preservation,’ says Allman. ‘There is currently a lot of dismay and confusion over which standards of preservation to use when litigation is contemplated.’ This is also true when a party has been sued, he adds.
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