On February 11-12, 2005 in Washington D.C., the Civil Rules Advisory Committee heard testimony from over 45 witnesses. This was the third and final set of public hearings on the proposed amendments to the Federal Rules of Civil Procedure relating to electronic discovery. Following are some highlights of the testimony from day one of the hearing, when the committee heard from over 30 witnesses. The complete testimony for this hearing, and the previous hearings, can be found here.
Todd Smith, President, Association of Trial Lawyers of America (“ATLA”)
-“Members told us…that they believe the present federal rules generally work quite well for all kinds of discovery, even in complex cases, and need little, if any, change. They don’t believe that the proposed amendments would improve federal practice. They believe that, if adopted, these proposals would invite additional discovery abuse, give corporate litigants procedural and substantive advantages beyond those they already enjoy, and continue what we feel is a steady erosion of the right to discovery.” (p6-7)
-Argued against the proposed “claw back” provision for inadvertently produced privileged documents. (p7-14; 23-25)
-Argued that the proposed changes to Rule 37 tend to encourage destruction of information, rather than retention, and that the indication from information technology professionals is that their organizations are considering email retention policies that limit retention. Lack of storage is not the issue. The impetus for considering limits on retention are legal discovery issues. (p17-22; 25-26)
Jim Rooks, Senior Policy Research Counsel, ATLA
-Noted that some ATLA members have indicated that they sometimes enter into agreements that contain claw back provisions for inadvertently produced privileged information, but that this is done only by agreement. “It’s not done because of a rule, and it isn’t necessary to have a rule to encourage it.” (p11-12)
Kelly Kuchta, President, Forensics Consulting Solutions, LLC
-Regarding the huge increases in the amount of data that can be stored electronically on relatively cheap storage space:
o”That is a very big, important point because what it does for businesses is it does not require them to actively manage their data. And since it does not, there [are] not any financial penalties for them. It’s very cheap. They can be very relaxed on their business records.” (p29)
o”This is not going to be just a big company problem. This is going to be an issue with every one of us that uses technology.” (p30)
-Argued that the distinction between what is reasonably accessible and what is inaccessible needs to center on cost. (p30-37)
-Regarding the safe harbor proposal: “…in general, I think I would be in favor of it. But I think that it would be very difficult to define how it could be applied in a manner that could not be open to abuse.” (p39)
Gregg Arenson (of Kaplan Fox) on behalf of the New York State Bar Association Commercial and Federal Litigation Section
-Regarding the safe harbor provision:
oAdvocated additional guidance in the committee note as to what factors may be considered in determining the routine operation of an electronic information system. (p43-44)
oSupported the safe harbor provision as drafted which applies a negligence standard, rather than the footnote version which would use a standard of reckless or willful behavior. (p45)
oArgued against addition of language to either the rule or the note to the effect that culpability ought to be a factor in deciding whether the more severe sanctions might be appropriate if the safe harbor did not apply. (p45-6)
-Regarding the provision relating to the inadvertent production of privileged information:
oArgued that once a party receives notice that they have inadvertently been given privileged information, the obligation of the party that has received the information not to use, disclose, or disseminate the information should be included in the rule, not just the notes. (p48)
oSpoke in favor of the concept that once notice has been given, there is an obligation to return, sequester, or destroy the material. (p48)
Adam Cohem (of Weil Gotshal), on behalf of the New York State Bar Association Commercial and Federal Litigation Section
-Regarding the safe harbor provision:
o”It seems like every month there is a big sanctions case with a big company or a big law firm. It’s not because they’re bad people. It’s because it’s incredibly difficult to implement a litigation hold over electronic information perfectly, and that’s why we believe that the safe harbor makes sense.” (p52)
-Voiced general support for two-tier discovery, noting areas that need some additional clarification. These areas include the factors to be considered in determining whether something is reasonably accessible and to what level a party needs to specify the information they consider not reasonably accessible. (p52-59)
-Argued against including any language that would establish a default format of production in the rules. (p59-60)
Jose Luis Murillo, Vice President and Associate General Counsel of Philip Morris USA
-On the general need for amendments to the rules to address electronic discovery issues:
o”What we want to emphasize is what we have seen…the need for corporate defendants, particularly defendants such as us, that have litigation every day, every year…we need clarity because we need to be proactive. We cannot wait for the demand to collect documents.” (p62)
o”We collect documents every day. We have a staff of 58 lawyers and paralegals in my group that do nothing but go [to] the business, collect [its] documents, understand the data, understand what is accessible, understand what the business uses every day to conduct the business of the corporation, and find ways to be able to crank this information out as quickly and efficiently as possible.” (p62)
-Regarding two-tier discovery:
o”I think it is certainly a huge step in the right direction. As I mentioned to Professor Marcus, the closer we can get to clarity on the issue of what is accessible…and I think the Sedona Principles lay it out very nicely, it is things that are used in the regular course of business, accessed in the regular course of business. That, to me, needs to be at least the starting point.” (p72-73)
Sanford Svetcov (of Lerach Coughlin)
-Argued against changes to the rules.
o”…while you’re having these hearings and thinking about these rules, there are federal district judges in 95 districts who are solving these problems under the existing rules. I’ve heard testimony today about a rule called not reasonably accessible. The word “reasonably”…is just another word for “burden.” And burden is already in the rules…And when you put the word[s] “not reasonably accessible” in this, “reasonably” is not going to add clarity, it’s going to add flexibility. And you already have flexibility in “burden.” So why are you doing this? If this committee folded its tent and went away, district courts are going to be able to do their work.” (p73-74)
oObserved that plaintiff’s lawyers are against the rules but defense lawyers and corporations support them, suggesting that those testifying are not party neutral and proponents want to use phrases like “not reasonably accessible” as tools for litigation. (p75-76)
Henry Rosen (of Lerach Coughlin)
-Advocated “party neutral” rules. (p80)
-Supported the amendments to 26(f) which require parties to meet and confer on the subject of e-discovery, suggesting that this portion be “beefed up” by requiring, among other things, that the meet and confer on e-discovery occur within 21 days of filing rather than within 21 days of the scheduling conference. (p81-85)
-Argued against proposals for two-tier discovery and safe harbor provisions. (p86-96)
Darnley Stewart (of Bernstein, Litowitz, Berger & Grossman), Vice President of the New York affiliate of the National Employment Lawyers Association
-Commented on the frequency of needing to obtain “inaccessible data.”
o”…in almost every single one of our securities cases, we are seeking and…getting what would be called inaccessible data.” (p98)
-Argued against the provision regarding the inadvertent production of privileged information. (p99-101)
-Voiced support for the proposed changes to Rule 16 and Rule 26(f) which encourage early discussion of e-discovery issues, but argued that the rules should go further, requiring discussion of preservation and imposing a duty to investigate prior to the initial planning conference. (p102-105)
-Argued against the proposed changes to Rule 26(b) that would establish two-tiers of discovery. (p106-121)
Jonathan Redgrave (of Jones Day)
-Spoke in support of the proposed provision for inadvertently produced privileged information. (p124-27)
-Supported the proposed provision for two-tier discovery, and encouraged the adoption of additional language such that the proportionality standards of 26(b)(2)(i-iii) would apply in the case of accessible data. (p127-137; 142-146)
-Voiced support for a safe harbor provision with a culpability standard higher than that of negligence. (p146-148)
Anthony Tarricone (of Sarrouf, Tarricone & Flemming)
-Argued against a provision for two-tier discovery.
o”…this two-tier process, just by creating another tier, it creates another hurdle. And for an individual litigant, that means more cost.” (p157)
-Argued against the safe harbor provision, saying that as written it would establish a de facto preservation standard. (p166-69)
Dennis Kiker (of Moran Kiker Brown):
-Endorsed the two-tiered discovery and safe harbor provisions. (p170; 183-86)
-In general, supported the proposed changes.
o”…if these rules went into effect today, it would be a great improvement and provide a lot of clarity for all of the parties. The case law would develop, life would go on, and everybody would survive.” (p171)
-Expressed concerns about the proposed amendments to Rule 34 regarding the form of production, particularly that the rule should not attempt to specify a default for the form of production in cases where the parties have not agreed on the format. (p171-82)
-Applauded the provisions requiring early discussion of e-discovery issues.
o”I’m a big advocate of the meet and confer. That’s a big part of my job because we always start here, arm lengths apart, and our goal is to get somewhere into the middle so that we get the information necessary to resolve the lawsuit.” (p189)
Jeffrey Greenbaum (of Sills Cummis Epstein & Gross)
-Voiced general support for the proposed rules changes.
o”…let me start by saying I believe there is a need to act now, and it is important to develop uniform national standards. I think the proposals on the table are excellent…” (p190)
-Supported early discussion of e-discovery issues. (p190-91)
-Expressed concern that the rules should not encourage preservation orders as routine.
o”I’m concerned that when you start seeing routine preservation orders being entered in every case and that there is a danger that we may have overbroad preservation orders that become very difficult to comply with and that become traps for the unwary.” (p191)
o”We should not have broad preservation orders. Any preservation order should be carefully tailored to the specific issues in the case.” (p192)
-Argued against establishing a default form of production when the requesting party has not specified the form in which they would like to receive the information. (p204-05)
-Suggested adjusting the safe harbor provision so that it specifies the level of sanctions that are available, and what level of culpability is required for each one. For example, re-deposition as a sanction might be applied when documents are negligently destroyed, while the striking of a defense or claim might require willful destruction.
o”…if you put that in a rule, you’re going to give people a lot more comfort that these systems are not going to be running away from them, and that if they act in good faith, there’s going to be some protection.” (p206)
George L. Paul, Mike Prounis and Gary T. Ford (Ph.D survey expert)
These three witnesses, accompanied by Mike Faraci of Navigant Consulting, reported results of a survey that was conducted by the Digital Evidence Project, an American Bar Association (“ABA”) interdisciplinary working group (while the three are members of the Digital Evidence Project, their testimony was not endorsed by the ABA). The survey polled various in-house counsel regarding both what the working group perceived to be the policies behind the rules, as well as the respondents’ current practices in some of the areas that are addressed by the proposed changes to the rules. Most of the respondents were not familiar with the proposed amendments, but the majority had recent litigation experience and nearly 2/3 either ran law departments or supervised lawyers within law departments.
Some of the key findings and conclusions from this survey
-On early discussion of e-discovery issues:
oCurrently, meet and confer sessions were happening in about 25% of the cases where parties had electronically stored information. In over 80% of the cases where the parties had meet and confer sessions about electronically stored information, they were able to agree with limited or no assistance from the court.
o”…meet and conference sessions are critical to how these rules are going to work in the future.” (Paul, p210-11)
-On the format of production:
oThe most common form of production for electronically stored information was paper. The second most common form of production was .tiff files. (Prounis, p212)
-On privilege waiver:
o”…when people talked about privilege waiver in advance, they were likely to be able to have an amicable solution…when it came up in the middle of a case…there was a less[er] likelihood of people being able to agree.” (Paul, p213)
oWhile more than 90% of the respondents said that spoliation sanctions had never come up in their cases, and less than 1% had actually been sanctioned, “…when we asked people did they think that taking action about sanction[s] for spoliation of [electronically stored information] was important, everyone seemed to…believe it was…” (Paul, p213-14)
-On records management and document retention:
oUnlike five years ago when most people did not have an electronic discovery protocol, 69% of respondents indicated that “…it’s very much front and center. That [electronically stored information] was influencing their records management policies.” At the same time, the survey suggested that corporate archives are continuing to grow, even though people are aware that they can legally reduce the size of their archives. (Prounis, p214)
-On the need for amendments to the rules:
o”…we wanted to ask them about what the committee has identified in its materials as the issues, the areas of concern… And although people hadn’t really been familiar with the rules, they were really quite supportive of action in the areas that are being addressed.” (Paul, p218)
Catherine DeGenova-Carter, on behalf of State Farm
-State Farm has more than 69,000 employees and 16,000 agents, and maintains approximately 156,000 active email boxes. More than 5 million email messages are sent and received each day, and it has various kinds of databases and servers. (p221)
-Currently, State Farm is involved with over 150,000 lawsuits in various jurisdictions. (p222)
-“…we’re here to support the rules because we think that they give us guidance on how to handle this new trend of electronic discovery.” (p222)
-Expressed State Farm’s support for two tier discovery and made suggestions concerning the definition of “reasonably accessible.” (p223-24)
oReasonably accessible might be defined from a “user and searcher perspective,” or in layman’s terms “active online information that is searchable in the manner in which it was created.” In the alternative, a “non-inclusive list of factors” might be considered such as “…is this information that’s active? Is it online? Is it easily retrievable? Is it information that can be retrieved obviously without a lot of burden and with minimal effort and minimal cost?”
Pamela Coukos (of Mehri & Skalet)
-Argued against the two-tier proposal.
o”…what we’re talking about is the potential evidence in a case, the factual narrative that will determine whether the claims success or fail, whether the defense succeed or fail. And you know, there was some discussion of what are the limits? And the limits, I think, are cost and burden and, frankly, relevance – all of which are already in the rule that we have.” (p239)
o”…this whole idea that I’ve got to move to compel every single time, that’s really troubling. That’s not anywhere in the current rules or practice…” (p242)
Michael Nelson (of Nelson Levine)
-Regarding the need for amendments to the rules:
oStated that corporate guidance is necessary not only in connection with current litigation but also prospectively. “…absent that, there is not a uniform or national standard that we all can live by.” (p244)
-Argued in favor of the two tier approach, suggesting that in cases where the court orders production of inaccessible data the cost should be presumed to be covered by the requesting party. (p245-50)
-Argued in favor of a safe harbor provision that applies an intentional or reckless standard. (p251-54)
George J. Socha, Jr. (of Socha Consulting)
-Suggested a set of five factors to be considered when determining whether electronically stored information is reasonably accessible: type, form, location, ability, and effort. (p256-65)
-Regarding the form of production:
oSuggested that a single form of production may not always be appropriate and the rules and notes be might be changed to address multiple forms. (p265-68)
oWeighed in against including a default form of production. (p276-77)
-Provided an example of the costs connected with preserving backup tapes:
oA corporate defendant with which Mr. Socha is currently engaged is subject to preservation order affecting a significant number of its systems. It has spent nearly $6 million dollars over the past 8 months merely preserving the tapes themselves, and this is “nothing” compared to the cost of actually trying to get information from those tapes. (p272-74)
-Regarding early discussion of e-discovery issues:
o”I think the most important thing you’re doing with the rules here is encouraging the attorneys to talk early and talk often and talk a lot about these issues. That’s going to go a lot farther than anything else is to helping with this.” (p274)
Damon Hacker, President, Vestige, Ltd.
-Voiced general support for the proposed changes. (p279)
-Spoke at length about “reasonable accessibility,” and expressed his view that tools exist and are still being developed that have increased the amount of material that can be recovered and lowered the cost of recovery. (p279-282; 289-90)
o”I believe that…computer forensics has been…misclassified as being… [a] heroic effort…” (p289-90)
Donald Wochna, Chief Legal Officer, Vestige, Ltd.
-Elaborated on the concept of accessibility, and the potential problems it raises:
o”…nothing is inaccessible…it’s a matter of money.” (p282)
o”…our concern is that the standard…not be a way for people to hide…and not disgorge relevant data that’s really important.” (p286)
o”…under your proposed rule, it seems that we’ve got at least one additional motion practice that what we’ve got at the present time.” (p288)
o”I think you ought to assume everything is accessible unless somebody shows you it’s not.” (p291)
Stephanie Middleton, on behalf of CIGNA
-“I’m strongly in favor of having these rules…” (p295)
-Related an experience in one case where the judge entered a very broad protective order that, had CIGNA complied, would have essentially shut down their business.
o”…we were faced with the situation of, in essence, ignoring a court order and being in contempt for a period of time, and it was a significant period of time before we could get before the judge. So after that experience, and I do think that there are more judges who are signing preservation orders without the knowledge you have and [are] inclined to err on the side of over-inclusiveness, who may be signing a preservation order with no concept of the real-life implications…So to the extent the notes could reflect that preservation orders are not necessarily the norm, and if they are entered, they should be very narrowly and carefully tailored to require the preservation of very specific data, perhaps located in specific places because, again, it can be very burdensome on a large company.” (p297)
-Voiced support for a two tier provision that would not require the responding party identify the information it considers to be not reasonably accessible.
o”I’m concerned that in initially responding to the typical first request for production,…maybe some judges would say I have to create a privilege log or something akin to that. Or some judges might expect me to list all the places…[that] I didn’t think to look, which…is an impossibility because I didn’t think of it. Or[,] just…create a road map for the other side…to harass me…” (p299)
o”…as in-house counsel, primarily what I want to do, knowing that 95 percent of my cases or more are going to be settled, is I want to get to the merits, and I want to get the cases settled quickly, efficiently, [and] cost effectively… [I do not want to]…spend millions of dollars on discovery disputes and turning over documents that are not relevant, restoring back-up tapes that don’t have any materials that really make any difference in the case.” (p301)
-Regarding the form of production:
oExpressed concern over language stating that the requesting party could “specify” the form of production. She noted that this appeared to give the requesting party too much leverage in the decision, which was best made by the parties together, and suggested replacing “specify” with “request.” (p302-03)
oArgued that the rules should not be worded to favor production in native format. (p305-06)
-Voiced support for building in a presumption of cost shifting to encourage the requesting party to narrow discovery requests. (p303-06)
-Supported the safe harbor provision, but encouraged a formulation that protected parties from certain types of sanctions unless reckless or intentional behavior is involved. (p306-09)
Brian Leddin (of McCarter & English)
-Spoke in favor of the 26(b)(5)(B)provision establishing a procedure to follow in case of inadvertent production of privileged information and the need for early discussions regarding this issue. (p309-21)
o”…because of the volume of data and because of the informality with which it’s moved through the system and the certainty that privileged documents are going to slip through, it’s important that the courts and the parties deal with this issue before anything is produced…”
o”…if there’s an agreement on how the materials will be returned and what’s a reasonable time to make that call on the fact that something was produced that shouldn’t have been… before the first item is produced… 26(f) will have done its job.” (p320-21)
David McDermott, President, Association for Records Management Professionals International (“ARMA”) accompanied by Cheryl Pederson, President-elect, ARMA International
-Commented in general support of the proposed rules.
o”ARMA International applauds the committee’s efforts to address electronic discovery. However, we caution the committee against adopting any rules that may inadvertently cause large financial burdens to the parties due to increasing volumes of materials stored electronically. We also caution the committee against adopting any rules that may discourage entities from implementing and following best principles and best practices of records management. ARMA International agrees with the committee’s assertion that there should be an attempt to adopt a consistent set of rules, rather than allowing the adoption of local rules by various district courts across the nation.” (p323)
-Recommended clarification of the two tier provision.
o”We also recommend that the language within the proposed rules for determining whether information is reasonably accessible should be clarified. ARMA is concerned that the language in the proposed rule allows the party with the burden of production to determine what is reasonably accessible. We urge the courts to determine accessibility based on best principles and best practices of records management. Poor record-keeping practices by an organization should not be allowed as a means of frustrating electronic discovery.” (p323-24)
-Suggested that the rules should be worded to encourage good records management practice.
o”The proposed rule should include language that encourages good records management programs so that the organizations may respond to discovery requests in a timely manner and without a need for extraordinary or heroic measures. ARMA recommends the following text for incorporation in Rule 26 or the Committee’s commentary to Rule 26.
���’For corporate entities or any parties subject to statutory or regulatory retention requirements, a party will be expected to provide a copy of its formal records retention policies and procedures or otherwise articulate its record retention practices in the absence of a written policy. Records subject to a party’s records retention policies and procedures, whether formal or informal, will be assumed to be reasonably accessible, and a party’s failure to follow its practices and procedures will not relieve the party from the requirements of discovery.'” (p328-29)
Dabney Carr (of Troutman Sanders)
-Commented generally on the expense of e-discovery, and the need to make sure the rules can be followed and understood by litigants who do not face e-discovery frequently. (p337-42)
o”In preparation for coming here today, I canvassed my colleagues by e-mail…to find examples of people who have had problems with the discovery of electronic information. And in general, the responses I got were that not so much with issues of sanctions or preservation problems or things like that, it was more along the lines that in dealing with your garden-variety commercial litigation case, it was far more expensive to go through the discovery process to produce electronically stored information than it would typically be in the case of information that’s stored in hard copy. And I think the reason for that is that computers give us a much greater ability both to store a great deal of information and to retrieve it. But… at some point in the process of producing the information, you have to bring the information back to a human form. In the sense that you may be able to retrieve easily millions of pages of information, but at some point, a lawyer usually has to go through it. And that is the human level that becomes so expensive.” (p338-39)
o”…the committee should keep in mind the general unfamiliarity that litigants and judges… have with the issues [about] which this committee has now… [attained expertise]. (p339)
o”[What] you come up with in this process… [has] to be rules that the litigants can understand and apply without having to ask the courts for help. And the reason for that is because in the main,… [these] will be rules that the litigants will be having to work out for themselves.” (p341)
-Commented in support of two tier discovery, but expressed concerns over the identification requirement – that it would tend to encourage litigants to simply come up with a standard list of inaccessible sources, and that if the language were to remain it should be clarified to allow generalized descriptions. (p342-54)
o”…to identify everything that you cannot get is difficult to begin with and could be, at times, somewhat impossible.” (p349-50)
Lawrence La Sala, Assistant General Counsel, Textron, Inc., on behalf of the Association of Corporate Counsel (“ACC”) (formerly known as the American Corporate Counsel Association) accompanied by Ron Pepe, ACC Vice President for Law and Communications
-Voiced the group’s support for the amendments in general.
o”E-discovery and records retention challenges often top the list of concerns faced by our members and their clients, and we speak with confidence when we suggest that the issue affects and frustrates organizations of every size, shape, and color. A predominant thread among ACC members suggest that a widespread relief exists that the current state of the rules frequently permit discovery issues, and particular e-discovery issues, to overshadow the rest of litigation and inhibit the creation and maintenance of effective corporate records management programs… The ability to leverage and manipulate e-discovery requests and procedures, be it through overbroad discovery requests or threats of sanctions for unavailable or inaccessible data, will frequently be case determinative, regardless of the merits of the case or the amount in controversy relative to the cost of document or records production. So we are here to plead, essentially, that the need for consistency, predictability, and fair rules that take into account the business realities that our members go through have never been greater.” (p362-63)
-Voiced strong support for two tier discovery and the Rule 37 safe harbor provision and discussed how such provisions are necessary to stop litigation and discovery concerns from overshadowing good business practices.
o”The ACC understands the need to incorporate features into such programs which allow a response to litigation holds when appropriate. But without a safe harbor provision, the current environment actually threatens to turn the business equation on its head. Instead of encouraging the incorporation of reasonable features, corporations and corporate records managers, through their legal counsel, are being asked to redesign records retention systems so that crucial business needs take a back seat to potential litigation concerns.” (p369-70)
William Butterfield (of Finkelstein Thompson & Loughran)
-Spoke out against the two tier discovery provision. (p384-94)
o”I would say I haven’t heard anything yet today and I haven’t seen anything that demonstrates to me that there is a reason to adopt this rule and that there’s a reason not to stay with the current way of dealing with these situations, which, in the Zubulake case, there has been a very fair way of addressing these issues and dealing with them.”(p385) “[T]he current rules and the current case law, there is a more than adequate protocol for dealing with these issues. Second, under the reasonably accessible language and the new proposed Rule 26(b)(2), … this rule change almost creates a disincentive for typical responding parties to adopt new technology.” (p387)
-Argued against the safe harbor provision. (p394-98)
David Romine (Langsam Stevens & Silver)
-Argued that electronic discovery is less expensive than paper discovery. (p401-02)
-Argued against the provision for two tier discovery. (p405-417) Noted that the provision allows the responding party on its own initiative to simply not produce documents, placing a burden on the requesting party to file a motion to compel; also argued that “the proposed rule[s], if they go into effect, will basically encourage and bless litigants who delete and destroy evidence for the specific purpose of making them not reasonably accessible.” (p417)
-Similarly argued against the safe harbor provision.
o”And it will encourage litigants to employ document retention or, rather, document destruction data for the specific purpose of avoiding Rule 37 sanctions.” (p417)
James Daley (of Shook, Hardy & Bacon)
-Commented that the biggest issue in e-discovery was unstructured or individual electronic data, and that the rules were necessary in order to educate and provide incentives for companies to give proper attention to e-discovery and document management issues. (p419-26)
o”…without the incentive provided by these proposed federal rules, I think we’re going to stay in that holding pattern. And I don’t think we’re going to have the type of predictability and guidance that corporate America needs to deal with this issue and that the IT folks and records managers of corporate America are yearning for.” (p422-23)
-Elaborated on the positive role a safe harbor can play.
o”…provide a safe harbor and you provide a mechanism by which they’re encouraged to do the responsible thing – that is to say, have policies that are well reasoned, tailored to the business, have procedures that implement those policies, and have processes that could be demonstrated and should be demonstrated when challenged in terms of how those procedures are communicated, coordinated, and complied with. Then in that event, you’ve got, I think, the better situation. We can’t live in an atmosphere of fear, uncertainty, and distrust. At some level, we have to trust each other to do the right thing, absent evidence of the contrary. I don’t think it is particularly helpful to have the lack of guidance and uniformity and consistency that we have now. So the argument that the status quo is better than the proposed rules, I think, is just respectfully incorrect.” (p426)
-Voiced support for two tier discovery as a way to advance predictability and provide guidance, favoring an explanation of accessible information that emphasizes what is active and used in the ordinary course of business. (p427-36)
Carole Longendyke and Paul Lewis, on behalf of P.G. Lewis & Associates
-Noted concern with the two tier discovery provision, encouraging the committee to drop the term “inaccessible” from the rules.
o”[There are hazzards]…in labeling data inaccessible. It has been our experience that data cannot be inaccessible in that it either exists or does not exist. And if it exists, it can be preserved and recovered.” (p437)
-Voiced concern that the concept of accessible information might provide incentive for the willful destruction of information. (p437-441)
-Argued concerning the importance of less accessible information. (p442-48)
o”The value of less accessible information in litigation cannot be discounted merely because it is available in lesser quantities and in less accessible locations. The notion that the sheer volume of data from the most accessible sources somehow negates the value of the smaller proportions in the less-accessible locations is invalid.” (p442)
-Argued that forensic services are not typically as expensive or difficult as imagined. (p450-51)