The law, as a means of managing dispute resolution and criminal accountability, must be able to adapt to revolutions in industry or technology. We are currently in the early years of a technological revolution that will only grow and continue to change the way humans live their lives. The use of computers and the Internet has changed the way people and businesses think and act. In today’s court system, a case (civil or criminal) is often decided by evidence produced and discovered prior to trial. As computers have become the integral components of any successful business operation, the records on those computers have become more difficult to discover. Not only because of the difficulty of accessing an adversary’s computer records, but also because many experienced attorneys don’t even know what to look for when they gain access.
Added to the confusion is the lack of procedural and jurisprudential guidance. New discovery methods have hampered older traditional lawyers who carry with them the knowledge and experience of the days of pen and paper. The old rules are outdated, and in today’s world, if you can’t keep up with technology and advancements in the law, you’ll be as ineffective as the paper and pen in your hand.
In response to the increasing demands for structure in E-discovery, the ABA has proposed new Amendments to the Civil Discovery Standards related to the use of E-discovery. In part, these proposed amendments are intended to provide guidance for the retention, destruction, and production of evidence. Electronic evidence presents many problems that have not been previously experienced with more traditional forms of evidence. Certain forms of electronic evidence can be misleading and damaging to one party or another, because a piece of evidence can only represent an initial draft of a document, containing information that leads to the inference of liability. From a simple printout of electronic evidence, it can be extremely difficult to determine whether that evidence is the first draft or the final draft, and whether that evidence has any impact on the dispute. In many ways, electronic evidence provides easier access because there is no need to search through cumbersome paper boxes, but going through the actual discovery process can exponentially increase costs for both producing and discoverer parties.
It takes considerable time to trace information traces throughout a company’s network. From the claimant’s point of view, electronic evidence is difficult to destroy, as it takes an extremely complicated and sophisticated process to completely erase an electronic signature and the metadata associated with the files. As demonstrated, electronic evidence can sometimes be more difficult to find, but conversely, it is also more difficult to destroy. This juxtaposition of qualities can make a process that seems more concise in theory become more cumbersome and costly when put into practice.
In response to these growing concerns, as part of its proposed amendments, the ABA has focused on electronic discovery issues ranging from pre-trial conferences and electronically stored information to a party’s failure to discover or cooperate. Many plaintiffs’ attorneys are disturbed by the proposed Amendment 37 (f), which states that:
“Unless a court requiring a preservation order for electronically stored information is violated, the court may not impose penalties on a party under these rules when such information is lost due to routine operations of its electronically stored information system. electronic information if the party took reasonable steps to preserve the information visible information. “
This is perhaps the most problematic (at least for the plaintiff’s attorneys), because it effectively creates a safe haven for the destruction of electronic evidence. Sanctions would be prohibited when information is destroyed as a result of routine destruction practices. The rule does not say anything about what is a reasonable destruction practice or whether a party should freeze those practices once it learns that there is a possibility of litigation. Other important proposed amendments include:
- Rule 33 (d). Under traditional Rule 33, a party responding to questioning could produce business records rather than responding explicitly to questioning. Under amended Rule 33 (d), the responding party may produce electronic dates and records when responding to interrogations, provided that the requesting party can easily identify and locate the information sought.
- Rule 34 (b). The new proposed amendments do not require an attorney to choose a particular evidentiary format when responding to discovery requests, but their mere mention suggests a policy to favor electronic evidence. When a requested production format is not specified, the defendant must present evidence in the form in which that information is normally maintained or, alternatively, in a form that is reasonably easy to access and use.
- Rule 26 (b) (5) (B). This amendment addresses the inadvertent production of inside or protected information. This rule will allow a party who inadvertently discloses inside information to retrieve it from the accidental receiving party unless that party can demonstrate that they have a right to that information.
- Rule 45. This amendment to Rule 45 would essentially allow parties to quote electronically stored information in accordance with any of the other adopted amendments contained in the Rules.
These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the growing preference for electronic discovery. The legal world is changing and those attorneys who cannot keep up with the changes will be left in the dust. This ABA move should serve as a signal to those lawyers scared by technology and advances in the law. Electronic discovery is here to stay, unlike those who refuse to welcome changes to the judicial discovery process.