Just think about it. Courts are struggling with applying the electronic discovery rules fairly based upon the old fashioned technology that existed -- say -- four years ago. Now we are facing a growing movement toward cloud computing, distributed processing, SaaS and Social Media; we are seeing explosive growth of devices like iPhones and iPads and other smart devices. How are the rule makers to keep up with this technological evolution!
There have been extensive discussions about revising the Federal Rules of Civil Procedure to ease the burdens on corporate parties and to bring a greater sense of economic balance to e-discovery. Unfortunately, the extensive body of court decisions which forms much of the backdrop for these discussions is founded upon "old fashioned" corporate technology models: network servers, traditional back-ups, desktop computing and the ever present corporate laptop.
What rulemakers must do is take a careful look at what is happening today in corporate technology, spend a little time with a crystal ball and forecast what might be happening tomorrow and then take a fresh look at the rules. Obviously, the FRCP cannot and should not be framed in terms of specific technology but there needs to be flexibility in the rules and their recognize that what may be a reasonable strategy for collection and preservation of date on traditional media may not be workable, let alone reasonable, for some of the more current forms of media and the applications running on them.
All in favor of returning to the old ways of paper discovery raise their hands!
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