Holding powers other branches lack, Congress enters e-discovery fray to probe new rules, growing costs

http://ow.ly/7DE9G

An article by Robert Hilson on the aceds.org (Association of Certified eDiscovery Experts) website.

The article discusses the fact that Congress will become involved in the debate regarding possible revisions to the Federal Rules of Civil Procedure.

The article states, "It will come as a surprise to some who work in e-discovery that Congress is also the ultimate arbiter of the content of the Federal Rules of Civil Procedure, the guidelines by which the 93 US judicial districts handle civil cases. Congress, whose present membership includes 151 lawyers, maintains similar veto power over the rules approved by the Supreme Court that apply in criminal cases."

The article further states, "Led by Congressman Trent Franks, Chairman of the Constitution Subcommittee of the House Judiciary Committee, Congress is about to start receiving evidence of what's going on and why it costs so much.

Since the new rules took effect in 2006, sanctions for mishandling electronically stored information (ESI) have increased greatly. A 2010 study published in the Duke Law Journal found that there were more e-discovery sanctions cases in 2009 than in all prior years since 2005 combined. More recent reports show the trend is continuing. There is wide consensus that e-discovery under the federal rules, and under the distinct rules of some states, is more expensive, more complicated and more contentious than ever." A link to the referenced Duke Law Journal study is provided in the article.

The article further provides some arguments both for, and against, the need to revise the Federal Rules of Civil  Procedure. In addition, current subcommittee efforts that are seeking to address some of the "burdens" associated with eDiscovery, and how to potentially reduce the costs associated with preservation obligations are also discussed in this article.