Electronic Discovery: Don't Believe the Hype

In "eDiscovery: A New Approach to Discovery in Federal and State Courts," Illinois Bar Journal 4/07 (ISBA members only), authors Scott A. Carlson and Ronald L. Lipinski caution that the recent amendments to the federal rules aren't so ground-breaking as some have claimed:

Writers and commentators in the popular press and legal publications warn of a radical change in the legal requirements placed upon litigants by the amended federal rules. Some have said in so many words that individuals and corporations now "must save and retain every e-mail drafted or sent" and produce it in litigation. . . .

While the changes to the federal rules have sparked a new awareness about the obligations on lawyers and parties relating to the preservation and retrieval of electronic information, the basic litigation obligations have not changed. . . . They do not put the burden on individuals or companies to "keep everything."

What has changed? By creating a new category of documents called "electronically stored information," the amended federal rules "remove all doubt that the duty resting upon lawyers and litigants to find and preserve evidence relevant to a dispute unequivocally includes electronically stored information."

The remainder of the article explains how the amendments to the federal rules will work to change discovery procedures in federal cases. Although this sort of analysis is ubiquitous these days, the IBJ article is different in that it includes some helpful examples. If you want a well-written overview of the amendments to the federal rules on electronic discovery, the article is recommended.