Advisory Committee Makes No Progress with Data Preservation Reform

Advisory Committee Makes No Progress with Data Preservation Reform

As we mentioned in our September 9th BLLAWG, the Civil Rules Advisory Committee had a mini-conference in Dallas to discuss changes to data preservation rules. The current standards are very vague and tend to vary, and as electronic evidence gains importance there is an increasing need to make sure no crucial information is “thrown away.” In our post on e-discovery negligence we stressed the importance that all parties involved in litigation, vendors included, have a strong understanding of the scope of preservation necessary in today’s world, here’s how the rest of the litigation community is responding:

Small companies complain that they do not have the resources for extensive preservation, and large companies lament yearly preservation costs in the millions with little of the data ever being produced. Thus small companies would prefer fewer requirements and large companies more requirements in order to cull down information without fearing sanctions.

One suggestion was to expand on Rule 26(f) which requires pre-trial e-discovery conferences, but some argue these discussions happen too late in the litigation cycle to be of any use. In addition, the committee considered three different amendments — yet no decisions were reached except that more research needs to be done.

The three amendment options are:
1) Create specific rules on how to preserve electronic evidence and to what extent.
2) Provide only a general preservation rule.
3) Provide a sanctions-based rule, no preservation rules.

Interestingly, judges present at the conference said that less than 1% of their cases had preservation conflicts. So would a specific rule cause more trouble than its worth, particularly for small companies and individuals?

But isn’t it time for better defined guidelines, anyway? Whether this takes the form of a specific rule or a required conference (e.g. Rule 26(f)), it is high time we all have an improved knowledge of e-discovery and proper preservation methods. A clearer understanding of e-discovery is the start to more prudent data preservation, after all.


Thanks to Fulbright & Jaworski for the meeting recap.

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