The law, as a means of administering dispute resolution and criminal accountability, must be able to adapt to revolutions of industry or technology. We are currently in the beginning years of a technological revolution that will only grow and continue to change the way humans live their lives. Computer and internet use have changed the way that people and business think and act. In today’s judicial system, a case (either civil or criminal) is often decided by the evidence produced and discovered prior to trial. As computers have become the integral components of any successful business operation, the records on those computers have become more difficult to discover. Not only because of the difficulty of gaining access to an adversary’s computer records, but also because many seasoned attorneys do not even know what to look for when they do gain access.
Adding to the confusion is a lack of guiding procedural and case law. New methods of discovery have hampered older, traditional attorneys who carry with them the knowledge and experience from the days of paper and pen. The old rules are obsolete, and in today’s world if you can not keep up with the technology and developments in the law then you will be left as ineffectual as the paper and pen you hold in your hand.
In response to the increased demands for structure in E-discovery, the ABA has proposed new Amendments to Civil Discovery Standards relating to the use of E-discovery. In part, these proposed amendments are aimed at providing guidance for evidence retention, destruction and production. Electronic evidence presents many issues not previously experienced with more traditional forms of evidence. Certain forms of electronic evidence may be misleading and prejudicial to one party or the other, because one piece of evidence may only represent an initial draft of a document, containing information leading to the inference of liability. From a simple printout of electronic evidence, it can be extremely difficult to ascertain whether that evidence is the first or final draft, and whether that evidence has any impact on the dispute. In many ways electronic evidence provides for easier access because there is no need to search through cumbersome boxes of paper, but conducting the actual discovery process may exponentially increase the costs to both the producing and discovering parties.
It takes substantial time to track down trails of information throughout a company’s network. From a plaintiff’s point of view, electronic evidence is difficult to destroy, as it takes an extremely complicated and sophisticated process to completely erase an electronic signature and metadata associated with the files. As demonstrated, electronic evidence may at times be more difficult to find, but conversely, it is also harder to destroy. This juxtaposition of qualities can make a process that appears more concise in theory, to actually become more cumbersome and costly when actually put into practice.
In response to these growing concerns, as part of its proposed amendments, the ABA has focused on E-discovery issues ranging from pre-trial conferences and electronically stored information to a party’s failure to comply with discovery or to cooperate. Unnerving to many plaintiff’s attorneys is proposed Amendment 37(f), which provides that:
“Unless a court order requiring preservation of electronically stored information is violated, the court may not impose sanctions under these rules on a party when such information is lost because of the routine operations of its electronic information system if the party took reasonable steps to preserve discoverable information.”
This is perhaps the most troublesome (at least for plaintiff’s attorneys), because it effectively creates a safe-harbor for the destruction of electronic evidence. Sanctions would be barred when information is destroyed as a result of routine destruction practices. The rule mentions nothing about what a reasonable destruction practice is or whether a party must freeze those practices once it learns that there is a potential for litigation. Other important proposed amendments include:
- Rule 33(d). Under the traditional Rule 33, a party responding to an interrogatory could produce business records as a substitute for explicitly responding to the interrogatory. Under Amended Rule 33(d), the responding party will be permitted to produce electronic dates and records when responding to interrogatories provided that the requesting party can easily identify and locate the sought after information.
- Rule 34(b). The new proposed amendments do not require an attorney to choose a particular evidentiary format when responding to discovery requests, but its mere mention suggests a policy toward favoring electronic evidence. When a requested production format is not specified, the responding party should produce evidence in the manner in which that information is ordinarily maintained or, alternatively, in a form that is reasonably easy to access and use.
- Rule 26(b)(5)(B). This amendment addresses the inadvertent production of privileged or protected information. This rule will allow a party who unintentionally discloses the privileged information to retrieve it from the accidental receiving party unless that party can prove that they have a right to that information.
- Rule 45. This amendment to Rule 45 would essentially allow parties to subpoena electronically stored information pursuant to any of the other adopted amendments contained in the Rules.
These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the increasing preference for electronic discovery. The legal world is changing and those attorneys who are unable to keep up with the changes will be left in the dust. This move by the ABA should serve as a sign to those attorneys frightened by technology and advancements in the law. Electronic discovery is here to stay, unlike those who refuse to welcome the changes to the judicial discovery process.