Obsolete Already?: Why the 2006 Amendments to the Federal Rules of Civil Procedure Need Revision

As most people in the electronic discovery field are aware, eDiscovery is expensive, time consuming and complicated. The 2006 amendments to the Federal Rules of Civil Procedure did little more than acknowledge that electronic records are part of the discovery process. While this might have been shocking to some, it should not have been. Everything held, known, used or within the control of a party is subject to discovery unless privileged. The 2006 amendments did not change that.

The problem is that the 2006 amendments do not go far enough. As the cases involving eDiscovery disputes are resolved it is becoming clear that what is needed are additional rules that the parties control the eDiscovery process. California attempted to fix this problem by enacting the Electronic Discovery Act. (The jury is still out on how those requirements will work but it will be interesting to watch). While I doubt that most state legislatures will get as involved in the eDiscovery process as California, the courts should. The courts need to take a more active role in reducing the cost of eDiscovery by pursuing a more active cost/benefit analysis for discovery requests, forcing lawyers to be more reasonable in their requests, and awarding parties who take active steps to simplify the eDiscovery process. Certainly some vendors, including our own eDiscovery Solutions Group (http://www.ediscoverysolutionsgroup.com/), are finding ways to lower the cost of eDiscovery. This includes preparation, choosing the right technology, and negotiating a fair price. However, we cannot do it alone. The courts must help.

In civil cases, the judge and the parties usually live on three different planets. Each is comfortable in its own home with its own perspective of what should happen in the case. Then, they collide into each other. There can be an enormous collision at the eDiscovery stage (and again at trial). Both parties believe that the other’s electronic records will provide them with a smoking gun, forcing the other to settle on favorable terms. The judge wants the discovery process to reach a natural resolution and often detests bickering over discovery. Judges wonder why the parties cannot be professional and find a mutually agreeable resolution. This collision drives up the cost of eDiscovery. Better rules will force all involved to be more reasonable.

I predict that within 10 years the 2006 amendments to the Rules of Civil Procedure will be obsolete. New rules will be enacted that set better rules for the eDiscovery process.