E-discovery rules are being proposed to the full Civil Procedure standing committee at the Bar’s Annual Convention in Boca Raton.
Lawrence Kolin, who currently chairs the Civil Procedure Rules Subcommittee on Electronic Discovery, said his group has put forth language to be incorporated in several existing rules to address electronically stored information or “ESI.” If favorably considered, the changes will proceed to the drafting subcommittee.
Kolin said the panel has conducted multiple interim meetings since its formation, consisting of attorneys in diverse areas of practice, government attorneys, and the judiciary, began studying the federal rules amendments four years ago.
Kolin said just over half of the nation’s states have created their own e-discovery rules.
“Our rules are construed to secure the just, speedy, and inexpensive determination of every civil action, which is why this effort is necessary,” Kolin said.
“Those states that have recognized growing reliance by parties on the creation and storage of digital information potentially relevant to legal disputes, frequently resulting in costly and time-consuming efforts to identify, preserve, and produce electronic records, have passed rules,” Kolin said. “With nearly six terabytes of information being exchanged over the Internet every second, it is time for Florida to get on board with civil rules governing discovery of this electronic data.”
Moreover, Kolin said his subcommittee had found the traditional adversarial approach to civil discovery only tends to foster additional delay and motion practice where ESI is concerned, while the merits of the case are sometimes ignored.
“These issues are no longer limited to complex or commercial litigation and are increasingly evident in the full range of civil cases that routinely involve electronic evidence,” Kolin said.
In seeking to encourage self-determination and have parties work through anticipated issues before judicial intervention whenever possible, Kolin said the subcommittee incentivized early “meet and confer” behavior without actually making it mandatory under case management — something a unanimous straw poll taken at the Midyear Meeting revealed would never pass.
Kolin believes the rule language takes into consideration the burden and cost of discovery in litigation, which has become exorbitant in some instances.
“We have tried to account for the very real difference in state and federal practice culture, while incorporating key concepts in this area which are likely to become black-letter law,” Kolin said. “There is no one-size-fits-all e-discovery rule.”
Commenting on a recent federal court pilot program on electronic discovery in the Seventh Circuit, Kolin said having a set of fair-play rules at the outset of a case was shown to quell pretrial battles between parties. The goal there was to find ways to reduce costs and burdens of electronic discovery which have largely occurred.
“When judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process for litigants,” he said. “Continuing education of the bench and bar on principles of duty to preserve, cost-shifting, and proportionality will also aid resolution of cases on the claims actually at issue.”