A Celebratory Glass of Champagne?

Happy Anniversary Amendments!

On this day, the one year anniversary of the effective date of the Amendments to the Federal Rules on electronic discovery, I would like to take the opportunity to thank all those who worked so diligently for so many years to develop rules that essentially created a new niche in the world of litigation. After all, I (together with many of my compatriots) have spent the better part of the last three years developing materials to educate our firm lawyers, speaking at a variety of seminars on how businesses should prepare themselves for e-discovery, learning how to talk the talk of technology to interface between IT folks and lawyers -- and yes, it remains a challenge -- and advising clients on how to plan for the inevitable production of electronic information, and then producing it. I've been busy, and that's good. But the question remains, are we better off than before the Amendments? Well, that depends on who you are. The Amendments created not just a new niche of litigation practice, but a world of vendors willing (and sometimes able) to offer a variety of services to assist your e-discovery needs. Determining what those needs are is the more challenging part. Then you have to find a vendor who knows what your options are, gives you alternatives for how to achieve them, and can actually implement your desired option. Trust me, these vendors are few and far between. I have worked with several good ones, and a number of very bad ones. You must learn to ask the right questions, and work closely with your technology people to stay on top of what is being done.

Well the vendors are happy, what about the lawyers implementing the new rules? Rarely have I met a lawyer who is excited about the prospect of engaging in electronic discovery. Why? Because the practice of law and technology are usually mutually exclusive. Few lawyers have any idea what they are wading into, so most of them choose to avoid it altogether. Ask your local district court judge how many lawyers opt out of the requirements of the amendments during their Rule 26 conference. Those who get it grow frustrated with those who don't, and I have not seen a case yet in which both sides understood their obligations and sat down to discuss preservation duties rationally, leaving with a thorough understanding of their obligations going forward. I have high hopes, though, for the future.

And of course, saving the most important for last, how do the parties forced to comply with the rules feel? Afraid. Very, very afraid. In house counsel with whom I have spoken live in a constant state of fear that the letter giving rise to a duty to preserve will sit on an HR employee's desk for weeks on end or worse yet, never be seen by the legal department before electronic information that should have been preserved is deleted. What is the answer? Education and constant vigilance working together with trusted counsel knowledgeable about e-discovery obligations. The cost of e-discovery is another thorn in the side of in house counsel. Few understand enough about it to anticipate or budget costs, and that's another  problem altogether.

So, are we better off? The jury is still out. In a world where better than 90% of the information created is electronic, there has to be some guidance for clients, lawyers and judges to follow in dealing with the production of electronic information. The Amendments give us some guidance, but there is much to be flushed out in case law.

Happy Anniversary Amendments, let's see what we have to say next year. 
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