Civil Justice Reform - Part II Adding Clarity And Guidance To The Federal Rules For Handling E-Discovery

Thursday, December 1, 2005 - 00:00

In our December 2004 issue, the Honorable Lee H. Rosenthal, United States District Court Judge, Southern District of Texas, gave our readers an overview of the new package of rule amendments proposed by the Federal Judicial Conference Civil Rules Advisory Committee, which she chairs, for governing discovery of electronic information. To read her discussion of how the proposed new rules address the electronic discovery challenges that litigators face today, visit www.metrocorpcounsel.com and put "The Hon. Lee H. Rosenthal" in our site's search box. Judge Rosenthal will be speaking on this topic at the Membership Meeting of Lawyers for Civil Justice in New York City on December 12-13.

Editor: The last time we talked, the proposed package of rule amendments was still in the public comment period. You emphasized how much the Advisory Committee relies on the public's comments and gave our readers information about how they could participate in the rule-making process. Did you receive many comments from the public?

Rosenthal: Yes. We had wide public participation in the hearings we held on the east and west coasts and in the central part of the country. We also received a large number of written comments. Both oral and written comments came from lawyers and litigants in a variety of different practice areas. Not only did we hear from plaintiffs' lawyers and defendants' lawyers, but also from public interest groups and in-house lawyers from companies in a variety of industries and businesses.

The comments we received represented a good cross section of interests, including perspectives from vendors of products used in electronic discovery. We were well served by the fact that we received myriad comments from a technical as well as legal perspective.

Editor: How were the public's comments taken into consideration?

Rosenthal: After the comment period closed in February, we extensively studied the voluminous comments. We worked very hard to improve the package of proposed rule amendments in light of the comments we received. The resulting changes were presented in April to the Civil Rules Advisory Committee, which made further revisions and approved the revised package.

Editor: In our prior interview, you described the five principal areas being addressed in the proposed rule amendments. ( Editor's Note: Visit http://www.metrocorpcounsel.com/pdf/2004/December/40,45.pdf to read Judge Rosenthal's description.) Did the revisions make fundamental changes in any of these areas?

Rosenthal: No. None of the changes were to the basic concepts. The revisions found ways to more clearly express those concepts so that the rules as revised were a more helpful expression of the same concepts that had been presented.

Editor: Please describe the next steps in the process of putting the proposed rule amendments into effect.

Rosenthal: In June, we presented the revised rules with our committee notes to the Standing Committee on Rules of Practice and Procedure. Following deliberation, the Standing Committee approved the proposed rule amendments with recommendations to change some of the committee notes. The Standing Committee then sent the proposed amendments, along with its recommendations, to the Judicial Conference.

The Judicial Conference approved the recommendations in September. The Judicial Conference is made up of the chief judge of each of the circuit courts of appeals and a district judge representative from each of the circuits. That group is presided over by the Chief Justice of the United States Supreme Court.

The Judicial Conference will send the proposed rule amendments to the United States Supreme Court. If approved, the proposed rule amendments will then go to Congress. If Congress does not act affirmatively to disapprove the rule amendments, they will become effective on December 1, 2006.

Editor: The process seems very long.

Rosenthal: It is a deliberately slow and transparent process. It requires about three years for any rule change. The time and fact that our meetings are public and all the drafts and comments posted on the web allow many viewpoints to be heard and carefully considered. It's not fast, but it is inclusive and careful.

Editor: Did any particular areas receive more focus than others during that public comment period?

Rosenthal: Two areas of the proposed package of rule amendment were viewed as the most complicated. One is the area of access to electronically stored information that is not readily accessible. This problem is unique to electronic discovery. Based on today's technology, this would include backup tapes that are generally not searchable because they are not organized, but instead kept only for disaster recovery purposes. Another example is legacy data from obsolete software systems. Both of those are different types of electronic information involving technological problems that make it difficult to access or review information.

The proposed amendment to Rule 26(b)(2) sets up a two-tiered structure for resolving these problems. Under the proposed rule amendment, parties are still required to produce relevant and reasonably accessible information, but they do not have to review or provide information that is not reasonably accessible. That is the first tier of the process. Under the second tier, if a party wants to review the inaccessible information, the responding party will have to show that the information is not reasonably accessible, and the burden is on the requesting party to demonstrate good cause for the production of the information.

The second area that engendered a lot of comments was the area of sanctions related to a loss of electronically stored information sought in discovery. The proposed amendments to Rule 37 attempt to give more guidance to judges on whether and when sanctions could be issued for an inability to produce information in discovery because that information was lost. Under the proposed amendment, absent exceptional circumstances, a judge may not sanction a party when information is lost as a result of a routine, good-faith operation of a computer system. We wanted to give courts some guidance as to how electronic information is different from paper and what the implications are with respect to when judges should impose sanctions because a litigant cannot provide certain electronic discovery.

Editor: As you reflect on your service chairing the Advisory Committee, has anything particularly impressed you as you've helped the committee to gather and study suggestions for tackling how the Federal Rules of Civil Procedure address electronic discovery?

Rosenthal: As I learned more and more about electronic discovery through the rules process, I became most impressed with two things. One, the learning curve for everybody involved in electronic discovery is steep. The second is that lawyers and judges have to shift the way they approach discovery problems when there is electronic information involved. Lawyers have to plan earlier and talk to each other earlier and in greater detail about how to manage discovery. And judges will have to get involved earlier, more often, and to a greater extent, to decide the problems that will arise.

The proposed rule amendments attempt to provide guidance that will achieve an appropriate balance between litigants' need to obtain electronic discovery and the need of companies, government agencies, and individuals to run the information systems that are essential to their daily operations and lives.