The Impact of Changing Technology on New Discovery Rules
The new federal e-discovery rules take effect on December 1st. How will technology changes affect the application of these rules?
A recent software demo caused me to ponder this question. The “reasonably accessible” standard of amended Rule 26(b)(2)(B) guides allocating the burden and cost of discovery. New technology may alter that burden and cost. For example, magnetic tapes, which contain enormous quantities of corporate data, are often considered relatively inaccessible. But what if the restore cost drops dramatically?
I saw a demo of Index Engines, which provides an appliance that reads multiple back-up tape formats and indexes them at “wire line” speed. The result is a full-text searchable, de-duplicated database that is 5% to 8% the size of the original materials. Lawyers can do searches to identify which specific tapes should be restored.
I am neither a backup tape nor FRCP expert. But it seems that the easily restoring tapes across formats, without requiring original systems, and compressing them significantly may well change what courts consider “reasonably accessible.” This product seems to lower the cost of figuring out what’s on back-up tapes.
I think the broader implication is that lawyers must keep current on technology options. Inaccessible media today may well be all too accessible tomorrow. Reading tech trade journals may be as important as reading legal publications.
We may see a “reasonability ratchet.” Acceptance by just a few courts of a new approach may spawn a standard other courts find hard to ignore. In a loose opposite of Gresham’s Law, good technology will drive out bad. Whether this is good probably depends on your perspective. The technology cost may go down but the lawyer review time and costs up.
[Note: Index Engines may well have direct competitors – I did not research this. I have no relationship with this company. When vendors offer possibly interesting demos, I sometimes accept and then sometimes blog about it. My analysis may be wrong but I don’t have a vendor- or technology-driven bias.]
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