Report from the First Public Hearing on Proposed Changes to the Federal Rules of Civil Procedure Addressing E-Discovery

The first of three scheduled public hearings regarding proposed changes to the FRCP addressing electronic discovery took place in San Francisco January 12, 2005. Fifteen members of the legal community took advantage of the opportunity to publicly voice their views of the proposed amendments.

The diverse group included in-house counsel from corporations such as Microsoft and Intel, private practitioners – including both plaintiff and defense attorneys, and a computer forensic specialist. Participants commented on what they saw as the pros and cons of a series of proposed amendments to the FRCP designed to provide additional guidance to the courts and litigants engaged in the ever-growing area of e-discovery.

As expected, the two hottest areas of debate surrounded the proposal for a two-tier approach to electronic discovery, and the proposed safe harbor provision. Most of the day’s discussion revolved around these two issues and, not surprisingly, each issue had its proponents and detractors. Other issues receiving debate were the proposals affecting format of production and inadvertent waiver of privilege, how electronically stored information fit in with current notions of documents, distinctions between inaccessibility and burdensomeness, and whether the Rules should make reference to preservation issues.

Most who testified were strongly in favor of establishing a two-tier system of discovery which would create a presumption that electronically stored information from inaccessible sources is not discoverable absent a court order. Supporters of this provision pointed both to the huge amount of material already available and being produced from accessible sources, and the tremendous, disproportionate expense of producing from inaccessible sources. Many recommended that the Rules also include a presumption of cost shifting or cost sharing in situations where a party is required to produce inaccessible information, to deter parties from making overbroad requests. Even among those who supported two-tier discovery there was debate on the specific wording that should be used in the Rules, and how or if “inaccessible” should be defined.

Those who favored the two-tier approach to discovery were also in favor of the proposed safe harbor provision, though many felt it did not provide adequate protection as worded.

There were also speakers who weighed in strongly against both the proposal for two-tier discovery, and against the safe harbor provision. Citing the need to keep the playing field level, opponents to these measures argued that the existing Rules already adequately protect parties from unreasonable or overly burdensome discovery, while the new provisions would unfairly increase the burden on the parties requesting discovery. They argued that discovery-related sanctions were an uncommon occurrence in litigation, indicating further safe harbor is not necessary.

Despite different ideas about the likely effect of the proposals, and whether the proposed wording for some provisions should be strengthened, softened, or eliminated altogether, there was nearly unanimous agreement on one issue: that getting the parties to address electronic discovery issues as early in the litigation process as possible was crucial. The benefits of identifying and resolving potential problems early on were noted by many. And though there was disagreement on the best way to achieve it, the parties seemed to agree that most discovery issues were best resolved by the parties if possible, so as to avoid costly motions practice.

The discussion throughout the day was lively and interactive, with members of the Rules Committee asking many tough and pointed questions of the participants. Most of the speakers had also previously submitted written comments, and quickly found themselves being asked to clarify and elaborate upon their written comments as well as their live testimony. Focusing in on the areas of greatest debate, the Committee at times directed speakers to “switch hats” and consider their opponents’ arguments to see where common ground existed.

The public comment period regarding the proposed amendments to the Rules will continue through February 15, 2005. Two more public hearing sessions are scheduled: January 28, 2005 in Dallas, Texas; with the third and final hearing being held February 11, 2005 in Washington, DC. Full transcripts of each hearing will be available on the Federal Rulemaking website (click here).

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