Thursday, February 3, 2011

E-Discovery - Litigation Hold Rule on the Way?

Corporate Counsel has a great piece on a potential new amendment to the Federal Rules of Civil Procedure detailing e-discovery duties in litigation: In the Long Winter of eDiscovery, a Glimmer of Spring.  The highlight for me was a link to thoughts on a new rule from an all-star panel, including Judge Scheindlin of Zubulake fame. The memo is available here.

While I think you should just read the whole thing, here's a high level overview of whet they think a new e-discovery rule should address:
  • Triggers: When is the duty to preserve electronically stored information (ESI) triggered?
  • Scope: What must be preserved, relevant timeframe, form in which to store it, etc.
  • Duration of the hold
  • Ongoing Duties
  • Litigation hold is evidence of due care
  • Work product/privilege issues
  • Consequences for failure (ex. Sanctions)
  • Judicial determination of issues
I think they did a great job of identifying the major issues that need to be addressed. As is, parties are left doing 50% legal research 50% guesswork on a lot of these issues (rough estimate).  Of course, identifying the problems is only half the battle...

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.