The group Lawyers for Civil Justice published their opinions on current attempts at e-discovery reform and did not hold back their frustration. LCJ insists that the scope of required discovery must be greatly narrowed in order to start solving today’s extensive discovery problems. The Girard Proposals have proffered certain amendments, but for LCJ these changes will only make things worse.
The biggest problem in the eyes of the non-profit is over-discovery, which then leads to astronomical costs. The Girard Proposals do not suggest enough of a sweeping reform. These sorts of minute amendments have not worked in the past and, according to LCJ, will only impede true reform from progressing. In addition, the Proposals do not take discovery request reform into account, allowing responses to be equally broad. Their wording also promotes the misunderstanding that a party must produce all responsive documents in order to avoid being sanctioned, and thereby encourages overproduction.
Lawyers for Civil Justice has proposed four ideas that they feel would greatly help the dire state of today’s e-discovery standards.
1. Limit the scope of discovery to non-privileged data that gives clear proof of a claim or defense.
2. Define categories and sources of electronically stored information (ESI) that can be exempted from discovery or considered “not reasonably accessible.”
3. Explicitly state discovery requirements in the proportionality rule.
4. Limit requests to 25 productions, 10 custodians, and a two year period prior to the complaint.
The group predicts that by making these changes there will be less non-responsive data to review and therefore a lower cost. These ideas are not new, yet have never been tested. We can all agree that better defined discovery guidelines are in great need, but are 25 productions and two years of data enough to do all matters justice?
previous e-discovery reform posts:
Highlights: Gibson Dunn 2011 Mid-Year e-Discovery Update
Advisory Committee Makes No Progress with Data Preservation Reform