Is it Time to Rewrite the Rules?

[Ed.'s Note: We're back after a brief hiatus for personal matters. Watch for regular posts again.]

There seems to be a growing hue and cry to re-write the discovery rules in FRCP. See for example Mary Mack's post at Discovery Resources reporting on the American College of Trial Lawyers' Recent report on the discovery "crisis." Among other complaints from the trial lawyers is a claim that the discovery rules have "clogged" the courts because of increased litigation. There may be many failings in the application of the e-discovery rules, but to this commentator clogging of the courts is not one of them. True there are many pitched battles over discovery issues, but that has always been the case; it is only the subject matter that is changing.

In our view the core issue today is just one: the inodinately high cost of complying with the well established standards for pretrial discovery when electronic evidence is involved (and that is almost always the case these days).

In the "old days" we had a discrete number of paper files in metal file cabinets that had to be searched for potentially relevant documents. We dispatched an army of young associates and paralegals at hourly rates well south of the century mark to spend a few days perusing those files and finding potentially relevant documents. After a second review by more senior lawyers, the documents we sent off to the copy center, packed in bankers boxes and shipped to opposing counsel. The costs were fairly predictable. Sure, a few relevant documents were likely to be overlooked but nobody thought seriously about sanctions for such omissions because that risk was just an acceptable part of the process.

Now, however, times have changed. Given the undisciplined nature of store of electronic data and the lack of strong controls over end-user behavior extant at most corporations, almost every lawsuit requires a search of substantial parts of the corporation's electronic universe of information. Searches are done using all too frequently inartfully drawn search term equations (the judges are telling us how bad we are at that process) and huge amounts of information are extracted for manual review to determine whether it is or is not relevant. Because there is no universal standard for form of production, the parties haggle over native vs. tiff vs. pdf; they haggle over whether to produce metadata and if so what fields to produce. They haggle over how the documents are to be organized, preserving parent child information, system identifiers and custodian information. The end result is a very expensive process, often producing results that are only marginally valuable.

Add to the problem the diverse set of software tools and vendor options available in the marketplace and you have a very expensive investment required to even play in the e-discovery space.

A rewrite of the rules will take years to implement. What is needed, instead, is a stronger push for standards such as EDRM and the Sedona Principles, and for taking those standards to a mcuh deeper level. What is needed is for the district judges and magistrates to start to embody a more uniform set of standards in the courts. What is needed is for the trial lawyers to recognize the importance of "getting it right" from the start of the case with good faith negotiations over sound and reasonable e-discovery protocols before embarking on discovery battles.

My 2 cents worth.