LCJ Submits Formal Comment to Support Beneficial Revision of E-Discovery Rules
Sep 01, 2011

LCJ took action last week to improve the e-discovery rules to which corporate defendants are held accountable. In an official comment to the Advisory Committee on Civil Rules, LCJ argued that problems with discovery and electronic discovery have become so pervasive in recent years that rule makers must immediately consider meaningful amendments that would substantially improve the federal rules of civil procedure.

LCJ  Submits Formal Comment to Support  Beneficial Revision of E-Discovery Rules

 

LCJ took action last week to improve the e-discovery rules to which corporate defendants are held accountable. In an official comment to the Advisory Committee on Civil Rules, LCJ argued that problems with discovery and electronic discovery have become so pervasive in recent years that rule makers must immediately consider meaningful amendments that would substantially improve the federal rules of civil procedure.

 “Meaningful solutions to the problems of discovery will only come from decisive action to narrow the scope of discovery,” LCJ said. “No amount of tinkering will do.”

The Comment titledA Prescription for Stronger Medicine: The Danger of Tinkering Change and the Need for Meaningful Action,” which was submitted to the Civil Rules Advisory Committee on August 18th, provides detailed analysis of problems associated with discovery, especially electronic discovery, as well as the dangers of defaulting to meaningless, “tinkering” changes as solutions to those problems.

According to LCJ, the tendency of rule makers to “tinker” with amendments rather than consider substantial rule changes has only perpetuated problems. In addition, a recent explosion of electronic discovery, LCJ said, has worsened an already dismal situation and further drawn the spotlight towards the importance of discovery reform.

“Many different approaches have been adopted in an attempt to address the problems,” LCJ said. “In large part, though, those changes have done little to stem the tide of expanding discovery and have been particularly ineffective in addressing electronic discovery and its magnification of the problems of abuse, misuse and cost.”

LCJ has seized the opportunity to advance the position that the following specific amendments should be made to the Federal Rules of Civil Procedure. These amendments represent positions long-held by LCJ and advocated in the LCJ White Paper Reshaping the Rules of Civil Procedure for the 21st Century:

1. Rule 26 should be amended to narrow the scope of discovery to “any non-privileged matter that would support proof of a claim or defense” subject to a “proportionality assessment” as required by Rule 26(b)(2)(C).

2. Rule 26(b)(2)(B) should be amended to specifically identify categories, types or sources of electronically stored information that are presumptively exempted from discovery absent a showing of “substantial need and good cause” which, in turn, could be used to inform determinations of what constitutes “not reasonably accessible data” where the rule does not specifically address a particular type or category of electronically stored information.

3. The so called “proportionality rule”, Rule 26(b)(2)(C), should be amended to explicitly include its requirements to limit the scope of discovery.

4. Rule 34 should be amended to limit the number of requests for production, absent stipulation of the parties or court order, to no more than 25, covering a time period of no more than two years prior to the date of the complaint, and limited to no more than 10 custodians.

According to LCJ, these amendments would significantly improve the discovery process, making it more fair and efficient.  “These steps would serve to address a myriad of discovery problems by reducing the volume of information and evidence subject to discovery (a major contributor to cost), providing a clearer standard of relevance, lessening the likelihood of satellite litigation on discovery issues and, consequently, limiting the skyrocketing costs for litigants seeking fair and efficient resolution of claims,” LCJ said.

The comment also sharply criticized proposals by Rules Committee member and plaintiffs’ attorney Dan Girard, which are currently being considered by Judge John Koetl’s subcommittee. These proposals, LCJ said, represent the kind of modest, ineffectual rule change proposals that have become characteristic of discovery reform.

“The proposed amendments are a perfect example of the type of tinkering changes which have repeatedly proven ineffective in making any substantive headway in addressing the real problems of discovery, which have long served as a justification for deferring meaningful action on necessary reforms,” LCJ said.

According to LCJ, these kinds of proposals are far too modest to achieve necessary reform and, in fact, threaten the chances of passing into law those amendments that are truly meaningful and helpful.

“Beyond being ineffectual, however – a very real possibility as evidenced by the track record of such changes so far – is the danger that the acceptance of tinkering changes, such as those offered by these proposals, will once again justify a delay in taking meaningful action.”

This recent August 18th LCJ Comment is the latest in a series of scholarly work and data provided by LCJ to present the Civil Rules Advisory Committee with the “defense perspective” and is part of LCJ’s program to advance proposals that will fundamentally alter the Federal Rules of Civil Procedure.  Several LCJ members will be testifying on some of these issues at the upcoming September 9th Dallas Mini-Conference, which is sponsored by the Advisory Committee on Civil Rules and focuses on Preservation.  For more information please see the following links:

A Prescription for Stronger Discovery Medicine – The Danger of Tinkering Change and the Need for Meaningful Action

Preservation – Moving the Paradigm to Rule Text

 
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