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E-Discovery Emergence in Civil Litigation
As a means of resolving disputes and administering criminal responsibility, the law must be able to adapt to industrial or technological revolutions. We are currently in the early years of a technological revolution that will only grow and continue to change the way people live. The use of computers and the Internet has changed the way people and businesses think and act. In today’s court system, cases (both civil and criminal) are often decided by evidence produced and discovered before trial. As computers became an integral part of any successful business operation, records on those computers became harder to find. Not only because of the difficulty of accessing an adversary’s computer records, but also because many experienced lawyers don’t even know what to look for when they get access.
Adding to the confusion is the lack of guiding procedural and case law. New methods of discovery have hindered the old, traditional lawyers who carried knowledge and experience with them from the paper and pencil era. The old rules are outdated and if you fail to keep up with developments in technology and law in today’s world, you will be as ineffective as the pen and paper you hold in your hand.
In response to growing demands for structure in e-discovery, the ABA has proposed new Amendments to the Civil Discovery Standards regarding the use of e-discovery. In part, these proposed amendments are intended to provide guidance for the preservation, destruction, and production of evidence. Electronic evidence presents many issues not previously experienced with more traditional forms of evidence. Certain forms of electronic evidence can be confusing and harmful to one party or another, because an evidence can only represent a preliminary draft of a document containing information that leads to the conclusion of liability. Based on a simple printout of an electronic proof, it can be quite difficult to determine whether that proof is the first or last draft and whether that proof has any bearing on the dispute. In many ways, electronic evidence provides easier access because there is no need to search through cumbersome boxes of paper, but conducting the actual discovery process can increase costs exponentially for both producing and discovering parties.
Tracking data trails across a company’s network takes a significant amount of time. Destruction of electronic evidence is difficult from the plaintiff’s point of view, as completely erasing the electronic signature and the metadata associated with the files requires an extremely complicated and complicated process. As indicated, electronic evidence can sometimes be more difficult to find, but conversely, it is also difficult to destroy. This overlap of qualities can make a process that seems more compact in theory actually more difficult and costly in practice.
In response to these growing concerns, as part of its proposed amendments, the ABA focused on e-discovery issues, from pretrial conferences and electronically stored information to a party’s failure to comply or cooperate with discovery. Much to the chagrin of many plaintiffs’ attorneys, the proposed 37(f) amendment states that:
“If a court order requiring the protection of electronically stored data has not been violated, the court may not impose sanctions against the party in accordance with these rules, if such data is lost as a result of the regular operation of its electronic information system, if it has taken reasonable steps to protect discoverable data. information.”
This is perhaps the most difficult issue (at least for plaintiff’s attorneys) because it creates a safe harbor for the destruction of electronic evidence. Sanctions will be prohibited when information is destroyed as a result of routine destruction practices. The rule says nothing about what constitutes a reasonable destruction practice or whether a party must freeze those practices after learning of the potential for litigation. Other important proposed amendments include:
- Rule 33(d). Under traditional Rule 33, a party responding to a request may submit business records in lieu of publicly responding to the request. Under amended Rule 33(d), a responding party would be permitted to produce electronic dates and records in responding to interrogatories, provided that the requesting party can readily identify and locate the information sought.
- Rule 34(b). The proposed new amendments do not require counsel to select a specific evidence format when responding to discovery requests, but simply mentioning it suggests a policy of favoring electronic evidence. If the required production format is not specified, the responding party must provide evidence in the manner in which that information is normally maintained or, alternatively, in a form reasonably easy to access and use.
- Rule 26(b)(5)(B). This amendment applies to the accidental production of privileged or protected information. This rule would allow a party who intentionally discloses privileged information to recover it from an accidental recipient unless he can prove that he has a right to access that information.
- Rule 45. This amendment to Rule 45 would essentially allow parties to subpoena electronically stored information in accordance with any other adopted amendment to the Rules.
These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the preference for e-discovery. The legal world is changing, and lawyers who fail to keep up with the changes will be left in the dust. This move by the ABA should be a signal to attorneys who fear technology and advances in the law. Contrary to those who refuse to welcome changes to the judicial discovery process, e-discovery is here to stay.
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