House Judiciary Subcommittee: No Need to Act on EDD Costs

http://ow.ly/81OW1

An article by Henry Kelston posted on law.com on the LTN webpage.

This article discusses a recent Congressional subcommittee meeting that addressed concerns of eDiscovery costs and preservation obligations.

According to the article, "In the end, the consensus of the participating members was that the question is being actively studied by the Federal Judicial Conference's Civil Rules Advisory Committee, so there is no reason for Congress to involve itself at this time."

The article describes the events that took place at the recent Congressional hearing on this topic, as well as provides some comments made by some of the Representatives. The article states, "Rep. Jerrold Nadler, D-N.Y., opened his statement with the observation that the title of the hearing did not "even remotely acknowledge" the critical role discovery plays in uncovering facts so that cases can be resolved on the merits. While acknowledging that electronic data discovery poses new challenges and burdens to litigants, Nadler pointed out that electronic data has also "proven particularly valuable in uncovering critical evidence and improving accountability," and that "we should not lose sight of the tremendous benefits of discovery in our focus on its alleged costs and burdens.""

The article further quotes  Rep. John Conyers, D-Michigan, as having noted noted that "less than one-tenth of 1 percent of federal cases involve the level of discovery costs that were subject of the hearing, "which suggests that this hearing may be based on some corporation insistence that they be heard about this matter" rather than a genuine need to consider rules changes."

The article also quotes Rebecca Kourlis, now the executive director of the Institute for the Advancement of the American Legal System. According to the article she "...began by stating what litigators already know: that e-discovery has made litigation more complex and expensive, leading to fewer trials and more settlements based on the cost of litigation rather than the merits of the dispute. "The culprit seems to be, to some significant extent, the way in which the pretrial process unfolds.""

In addition, William Hubbard, an assistant law professor at the University of Chicago testified about preservation costs, and warned that sometimes they grow to substantial amounts.  However, he was also quoted as providing a figure that "discovery in the median case costing about $12,000. "

Further comments from other testifying witnesses are also provided in the article.