Although official changes to FRCP rules are not likely to take effect until 2013, a Judicial Conference of the United States subcommittee is circulating some of the proposed changes to e-discovery they are considering recommending. If proposed changes are adopted, it will increase the need for firms to utilize the services of e-discovery providers who are able to understand the new rules and adapt their methodologies accordingly.
Goal of Committee
The goal of the committee is to update FRCP 26 in order to include rules that will address preservation of electronic data and sanctions. The committee will focus on 3 rule types that effect e-discovery, including those that are very specific to ESI. More general rules and those that address sanctions will also be discussed.
At a meeting in Dallas on September 9, the committee intends to discuss the challenges that are presented by electronically stored documents, which were first addressed by the committee in April. Issues such as the limitations of the current rules, both in the United States and overseas, as well as the effects of advancing technology will be the focal point of many of the discussions at the meeting. The September meeting will include 7 subcommittee members, defense and plaintiff lawyers, corporate counsel and industry and academia technology experts. It is expected that any changes to the FCRP will require discussion of the handling of electronically stored information much earlier in the discovery process than has been the norm, in an effort to keep up with evolving requirements and technology.
The current FRCP 26 rules cover basic e-discovery requirements such as initial disclosure and ESI that is not reasonably accessible. The hope of the subcommittee is that they will expand these rules to make e-discovery requirements more definite and uniform. However, many experts seem to question whether it is possible to address uniformity or if it is even necessary to amend the rules at the present time. In a recent article in Law Technology News, former U.S. Magistrate Judge Ron Hedges commented that the rules “really haven’t been around long enough to see what happens.”
If changes to the FRCP are made because the Judicial Conference of the United States determines there is a need for more uniformity in the e-discovery process, it will be more important than ever to utilize the services of an e-discovery service provider at the beginning stages of the discovery process.