Duane Morris partner Eric Sinrod writes about the “new burden” of electronic discovery for CNET:
Almost a year ago the Federal Rules of Civil Procedure governing the discovery of electronic data were amended. While the changes were designed to reduce litigation costs, we’ve seen just the opposite.
I think he gets off on the wrong foot immediately with this opening paragraph. The changes were not, in my opinion, primarily designed to reduce litigation costs. Rather, they were meant to give guidance to courts and disputants on handling electronic discovery. Part of the amendments were aimed at reducing the burden of data that isn’t “reasonably accessible,” because of, inter alia, high costs. In fact, his essay goes awry even before the first paragraph. The very headline, “The new e-discovery burden,” is inaccurate, at least with respect to legal obligations. Relevant computer records were, even before the new amendments, considered discoverable. If there is a new burden, it is because of a combination of business practices (we will save everything ever generated) and certain technological developments (cheap and efficient storage devices, advances in collaborative and distributive computing technologies, etc…). But the amendments stay true to traditional legal principles.
He does make a nice point about the expansion of the definition of the term “document:”
The amendments broadened the definition of items subject to legal discovery, ranging from “documents” or “data compilations” to include all electronically stored information. Parties in a lawsuit can now demand from each other word processing documents, e-mails, voice mail and instant messages, blogs, backup tapes and database files.
I would argue, however, that the law is merely responding to technology, and it is technology that has truly expanded the definition, and the law is merely staying true to the goals of the discovery process. The article continues with examples from cases on such topics as retention policies and litigation holds, reasonable accessibility, cost shifting and sanctions. All provided with links to those decision.