The article Federal Courts Propose Rules for E-Discovery in the New Jersey Law Reporter provides an interesting update on potential changes in the rules of discovery, especially with respect to digital data and electronic evidence discovery. 

Readers who follow the e-discovery world know that the on-going transition from paper to digital discovery raises a host of difficult issues, technical and legal. The article is a good read on current issues; I will focus on one: preserving digital data once a law suit begins is a concern, especially given that many large corporations have systems that are not designed to do so.

It is no surprise to read that “[t]he most controversial of the proposed rules may be an amendment to Rule 37 that would create a narrow “safe harbor,” protecting a party from sanctions for failing to provide electronically stored information in some circumstances. ” The article goes on to report that the draft rule would provide a safe harbor from the inadvertent destruction that “resulted because of the routine operation of the party’s electronic system.”

It is a surprise, however, to read that U.S. Magistrate Judge Ronald Hedges opposes this provision and “says he does not see why electronic data should be singled out for special treatment. ‘If we’re going to have a safe harbor provision, it seems to me we ought to protect information in any format, not just an electronic medium.’ ”

Excuse me? I hope this does not reflect a dominant view among the judiciary. I take no position on what rule changes would be best, but one thing is obvious: digital data and paper are different. Lawyers, including the judiciary, need to understand that. Now, if there were a type of paper that, when you opened the file drawer, it disappeared or forever changed, I might agree with Magistrate Hedges’ view. Or, if by walking in my office and turning on my light, the dates on every piece of paper in my office automatically changed to the current date, I could understand his point.

Whatever direction the rules head, they need to reflect the reality of corporate information systems, which were designed to manage data for operational purposes, not for preservation in litigation. It’s an old saw now that just turning on a computer changes some data. In a similar vein, corporations that run on SAP or other enterprise systems cannot simply turn off their systems or easily freeze all the data.

It will be hard, but I believe enough smart people are working on new rules that the right balance can be struck between the legitimate needs of business/technical operations and of lawyers in litigation. But in my view, the starting place is to recognize operational business requirements and the difference between digital files and paper. It would be a shame if our already very expensive system of litigation became even more so because discovery rule changes that end up creating unreasonable burdens to “protect” data.