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| Written by Michael Arkfeld |
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Did We Really Need eDiscovery Procedural Rules? Mistakes are, after all, the foundations of truth, and if a man does not know what a thing is, it is at least an increase in knowledge if he knows what it is not. Carl Jung Three years later - did we really need to amend the federal rules for ediscovery? On December 1st, 2006, changes relating to “electronically stored information” (ESI) in the Federal Rules of Civil Procedure took effect. The changes to Rules 16, 26, 33, 34, 37, and 45 provide mandates to the preservation, discoverability, production, accessibility, and costs associated with ESI which includes e-mail, word processing documents, spreadsheets, voice mail, databases and more. Over the last 18 years I have been writing on how to apply technology applications to the practice of law and eight years ago I began my initial research of court cases and procedural rules focusing on discovery of electronic information. During that time the amended ediscovery federal rules were being proposed and hearings held across the country to determine whether the procedural rules should be changed to adapt to the digital world. I remember sitting through a proposed amendment discussion at Fordham University thinking “what technology has wrought – technology will solve.” In fact, during all my presentations over the last several years, this has been one of my closing comments.What has always raised doubts with me about the necessity to amend the rules was the vast “disconnect” between the legal profession and technology. Most legal professionals today have a total lack of understanding of “technology” concepts as they relate to the discovery of electronic information. Whether we are discussing backup tapes, metadata, native files and so on, most legal professionals today are unable to apply these technology concepts to legal concepts such as “not reasonably accessible” or “form or forms” of discovery. If legal professionals are unable to apply and advocate basic technology concepts today, what about the advancements of tomorrow? Several of the driving forces behind the implementation of the amended electronic discovery rules were: • The volume of ESI is significantly greater then paper • Systems that create, store and transmit ESI are often complex • ESI may need to be preserved, restored, or processed before it can be reviewed for privilege, trade secrets or responsiveness Recently, technology has evolved to the point where a party can now conduct a keyword search for specific evidence in a computer network system and identify, lock down, duplicate and collect relevant, native ESI for a relatively low cost. What impact will this technology have upon procedural issues such as “not reasonable accessible,” “form or forms of disclosure,” etc.? Another technology advancement that is touted is the capability to “search” backup tapes without the necessity to restore them. Couple this with the recent enactment of Federal Rule of Evidence 502 regarding inadvertent disclosure of privilege information and the explanatory note suggestion that if one uses “reasonable” screening procedures - “advanced analytical software and linguistic tools” – then the need for the “not reasonable accessible” amendment may not have been necessary. However, the amended federal and state rules have been effective in drawing attention to the need for legal professionals to begin to understand “electronically stored information” and the systems that create and store the data in order to apply technology to legal mandates such as “preservation of evidence.” Maybe, this is enough. |