A Changing Definition of Deletion

http://ow.ly/6KupG

An article by Craig Ball, Esq. on his blog Ball in Your Court.

This article discusses the recent push to try and revise the Federal Rules of Civil Procedure.  The author states that there are many voices expressing that there are undue burdens placed on corporations regarding information retention.

The article states as follows, "The proposed changes are driven by the second silent goal of sparing litigants (really their technologically challenged counsel) the chore of knowing enough about electronic evidence and information technology to make defensible decisions about preservation. ”Don’t make us learn anything,” they plead, “just make rules specific enough to protect us from not knowing.”"

The article goes on further to point out, "Case in point: One proposed amendment would create a presumption that certain data is excluded from the preservation duty, to wit:

(A) Deleted, slack, fragmented or unallocated data on hard drives;
(B) Random access memory (RAM) or other ephemeral data;
(C) On-line access data such as temporary internet files;
(D) Data in metadata fields that are frequently updated, such as last opened dates;
(E) Information whose retrieval cannot be accomplished without substantial
additional programming, or without transferring it into another form before
search and retrieval can be achieved;
(F) Backup data that substantially duplicate [sic] more accessible data available
elsewhere;
(G) Physically damaged media;
(H) Legacy data remaining from obsolete systems that is unintelligible on successor systems [and otherwise inaccessible to the person]; or
(I) Other forms of electronically stored information that require extraordinary affirmative measures not utilized in the ordinary course of business.

Starting with the word, “deleted,” it’s clear that this list is driven by an outdated understanding of information systems. ”Deleted” in 2011 bears only a passing resemblance to “deleted” circa 2001."

The article goes on to point out a detailed list of flaws in the proposed amendments to the rule changes from a recent advisory committee meeting.  The author states, "This would all be so disheartening were it not for the glimmer of hope inspired by a footnote to the list of ESI excepted from preservation. It reads, “This specific listing is taken from submissions to the Advisory Committee. Besides asking whether it is sensible and complete, one might also ask whether a list this specific is likely to remain current for years.

Years?!? Heck, it’s not current now. As to sensible, it’s barely comprehensible. But, the footnote gives me hope that the Committee is asking the right questions and this misbegotten mess won’t make it into the FRCP."

P.S. The author's wise conclusion, "My take: We don’t need more specific ESI rules. We need to become competent implementing the good ones we’ve got."