Happy Birthday E-Discovery! (The E-Discovery Amendments One Year Later)

1st BirthdayI had the good fortune of taking a long vacation right after Thanksgiving, which meant I missed an opportunity to post on the one year anniversary of the so-called “e-discovery amendments” to the Federal Rules of Civil Procedure. These amendments went into effect December 1, 2006 and they have certainly rippled into the litigation landscape over the past year.

While there wasn’t a lot of fanfare about the anniversay (well, I didn’t get invited to any birthday parties), there was a smattering of press releases and information that dribbled around the Web to mark the occasion.

At least two vendors marked the anniversay with surveys. I presume a lot of folks are tired of seeing the constant stream of e-discovery surveys, but they are one of the best ways to get a good grasp of how the litigating world is dealing with the burden of e-discovery. Since so much litigation is understandably conducted behind closed, confidential doors, general surveys help us follow the evolution of e-discovery. (In fact, I’ve now added an “E-Discovery Surveys” category to this blog.)

First, Fortiva posted the results of a survey conducted for them by iTracks with the alluring title “One in Five Businesses Have Settled a Lawsuit to Avoid the Cost of Recovering and Searching Through Email.” The survey was conducted between November 7-23, 2007 among 90 professionals “directly involved with legal discovery in North America.” Several interesting bullet points come out of the survey:

  • 47% of respondents do not agree that their legal team can effectively review relevant e-mail in the time alotted by the FRCP before the “meet and confer” session
  • 51% of the respondents have either implemented, or are planning to implement, technology that allows them to easily search and review e-mail
  • 69% of the respondents report that they face at lesat one litigation hold each year, but only 37% have a formal litigation hold process in place
  • 37% of the respondents conduct more than 21 searches through old e-mail each year to gather information for legal reasons
  • 35% of the respondents are NOT confident that e-mails are fully reviewed to ensure attorney-client privilege is not waived before being sent to opposing counsel
  • 51% of the respondents claimed the average cost of litigation (excluding settlement costs) was over $200,000, with 8% putting the average cost over $1 million

Next, LexisNexis reported the results of their Corporate Counsel Survey which was conducted between October 29-30, 2007 at the 2007 Association of Corporate Counsel Annual Meeting. “Seventy-six verified corporate counsel attorneys from diverse geographic and industry backgrounds were randomly selected and participated in the 14 question online survey.” Notable bullet points:

  • Respondents reported that their biggest challenges in complying with the FRCP for electronically stored information involved internal processes and systems:
    • Communicating with IT departments (27%)
    • Finding budget to put systems and tools into place (25%)
    • Getting buy-in from upper management on the importance of litigation preparedness (21%)
    • Finding e-discovery staff with a good mix of IT and legal expertise (9%)
  • 70% of the respondents incorrectly believe that the rules require them to product documents in their “native file” format
  • 76% of the respondents report that the new rules have NOT helped trim costs nor reduce the scope of discovery work, and 73% of the respondents said their company has seen an increase of up to 20% in discovery workload as a result of the new rules
  • 82% of the respondents report their company has a document retention policy; 75% report they have implemented a formal legal holds process; and more than 40% report they have conduted employee training for compliance

E-discovery vendor Kroll Ontrack took a bit of a different approach by offering a look at “The Most Significant Electronic Discovery Cases Under The New Federal Rules of Civil Procedure.” The press release reports that approximately 105 e-discovery opinions have been reported since December 1, 2006 and they break down as follows:

  • 25% of cases addressed discovery requests and motions to compel
  • 24% of cases addressed spoliation/sanction
  • 23% of cases addressed issues involving the form of production
  • 9% of cases addressed preservation/litigation holds
  • 7% of cases addressed attorney-client privilege and waiver
  • 6% of cases addressed production fees
  • 6% of cases addressed admissibility of electronic evidence

The Kroll Ontrack press release also boldly lists the top 5 most significant e-discovery cases from 2007.

The last press release is mostly a puffery piece from Mimosa Systems, although the Byte and Switch headline read “Mimosa Observes FRCP Anniversary” (and also observed by the Information Governance Engagement Area blog).  The release discusses how many companies are now realizing the need for e-mail archiving applications (such as that from Mimosa Systems) which “provides important benefits for companies required to satisfy data governance with respect to FRCP.”

And lastly, this is not a press release, but the FRCP itself is celebrating their e-discovery amendment birthday by doing a little spring cleaning on the language of the rules. The Rules Advisory Committee has apparently been busy over the last few years working on a comprehensive “style” revision of the Civil Rules and the fruits of their labor went into effect on December 1, 2007. You can read full reports about the new amendments at http://www.uscourts.gov/rules/congress0407.htm.

The Excerpt from the Judicial Conference Report repeatedly states that the revisions focus on “style” revisions for the FRCP (as well as other Rules) to better “clarify and simplify them without changing their substantive meaning.” To accomplish this, the advisory committee

  • used formating changes to achieve clearer presentation;
  • reduced the use of inconsistent and ambiguous words;
  • minimized the use of redundant words and terms;
  • and removed words and terms that were outdated.

Examples of these changes included breaking down blocky paragraphs to make them easier to read. Ambiguous words like “shall” were replaced with words like “must,” “may,” or “should” where necessary to better convey the meaning of the rule. Changes were made to numbering schemes although all rule numbers stayed the same – an example is that FRCP 26(f)(3) is now FRCP 26(f)(3)(C) which truly makes better sense when you see the rule in toto.