Highlights from the Second Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure

On January 28, 2005 in Dallas, the Civil Rules Advisory Committee held the second of three public hearings on the proposed amendments to the Federal Rules of Civil Procedure relating to electronic discovery. The committee heard testimony from 18 individuals. Following are some highlights of the testimony. The complete testimony can be found at here.

James Wren, on behalf of the Texas Trial Lawyer’s Association:
-“[W]ith regard to the proposed language of Rule 37 F, I believe that as currently worded it raises the potential for discovery abuse… I question whether there is even a need for a safe harbor provision, … I’m very concerned that the combination of the safe harbor provision, with the language from Rule 26 regarding presumed nondiscoverability, and that is the effect, of information deemed by the responding party to be not reasonably accessible, … invites a situation for a party who wants to prevent the discovery of information, would within its control move the information to a, quote, nonaccessible or unaccessible status, that is, through archiving, through encryption, et cetera. It’s still there, but by that action it creates at least the argument that it is not reasonably accessible.” (p4-5)
-“[T]he issue regarding access to data should not be a … discoverability issue. It should be tied to cost.” (p15)

Peter Sloan:
-Argued that the phrase “digitally stored information” would be more accurate than the current wording’s “electronically stored information.” (starting at p20)
-“I think the safe harbor is quite helpful, because it recognizes the validity and the need to have some form of routine process that cleans house appropriately. … [a]nd for good faith purposes.” (p28)

Chuck Beach, on behalf of Exxon Mobil Corporation:
-Exxon Mobil is a company with 15,000 active cases in litigation. In 2004, it received new litigations at a rate of 225 per month. It has operations in 200 countries, and 306 offices – 70 in the United States. The company has 65,000 desktop computers, 30,000 laptop computers, and 15-20,000 blackberries and PDAs for its employees. It generates 5.2 million emails daily. (p35-36)
-In the United States alone, Exxon Mobil has 70 offices with 4,000 servers, 2,000 databases, and 500 terabytes of total information storage. It generates 121,000 backup tapes for disaster recovery purposes. (p38)
-“If we were ever to get an order, and we never have, that told us that we would have to stop all of our backup tapes, just the replacement of the backup tapes would cost 1.98 million dollars a month.” (p38).
-Argued in favor of the two tier approach and safe harbor provisions.

Ann Kershaw:
-Discussed the problem of blanket preservation holds. (p60)
-Supported the safe harbor, but argued that the culpability standard should be willfulness or recklessness, rather than negligence. (p65)

Paul Bland, on behalf of Trial Lawyers for Public Justice:
-Argued against the two tier approach and safe harbor provisions.

Steve Gardner, on behalf of the National Association of Consumer Advocates:
-“…special treatment of electronic discovery is simply not needed, not called for and is, in fact, going to create more dilatory and side litigation than we currently see.” (p86)
-“[T]he two-tier system is going to create nothing but headaches from plaintiff’s lawyers.” (p89)
-Argued that if there is going to be a safe harbor provision, that the standard should be kept at negligence. (p94)
-Argued against the inclusion of the pullback provision for inadvertently produced privileged information. (starting at p97)

Greg Lederer, on behalf of the International Association of Defense Counsel:
-Spoke in support of the meet and confer component, suggesting the language could be made more expansive.
-Spoke in favor of cost-shifting – that the rule should include either mandatory cost shifting, or at minimum, a presumption of cost shifting to the requesting party.

Darren Summerville, on behalf of Impact Fund:
-Argued against provisions for two-tier discovery. (starting at p108)
-Spoke in support of meet and confer components, suggesting that the committee provide even more detailed analysis as to what should be broached in the 26(f) conference. (p118)

David Fish:
-Argued against two tier discovery and the safe harbor provision. He proposed that if a safe harbor provision was to be included in the rules, it should be balanced by a provision for mandatory sanctions when documents are deleted in cases when litigation was reasonably anticipated. (p135-36)
-Spoke in support of the meet and confer provisions.

Steve Morrison:
-Testified in support of two tier discovery with a provision for cost shifting.
-Argued in favor of a safe harbor provision, suggesting that additional language should be added to the rule directing that the more extreme sanctions such as default, dismissal, or adverse inference should only be given in cases where destruction of information was intentional. (p150-52)

John Martin, on behalf of the Defense Research Institute:
-Voiced support for all the proposed rules.
-Spoke specifically in support of two-tier discovery, suggesting the addition of mandatory cost shifting.

Mr. Regard:
-Regarding two tier discovery, discussed the need for “an expansion of the committee’s thought on what reasonably accessible may or may not mean.” (p163-69)
-Voiced support for the safe harbor provision. (p176)

Mike Pope:
-Voicing general support for the proposed rules: “… there are no answers absent these rules and these proposed rules. So I think that they bring clarification to the conflict and their adoption will in fact increase respect for the court system and the civil justice system.” (p178)
-Spoke specifically in support of the safe harbor provision and two tier approach to discovery, suggesting stronger language be included to encourage consideration of cost shifting.

Ms. Owens:
-Offered discussion in favor of two tier discovery and argued that language regarding the presumption of cost shifting for inaccessible information should be included in the rules, not just the notes. (p194)
-Voiced support for the safe harbor provision, but with a willfulness standard rather than a negligence standard: “I’m a products liability lawyer, trust me, almost everything can be alleged to be negligence. We need something that’s a little bit stronger there in terms of – of willfulness. … We’re looking for enhancing the likelihood that litigation can be resolved on the merits and not resolved based on discovery issues. And the safe harbor would help. And in my mind a safe harbor based on the broader principles of negligence, which can often and will be often alleged, will be an unsafe place to be.” (p196-97)

Jim Michalowicz, on behalf of Tyco International:
-Expressed concern over the provision regarding the format of production. (p203)
-Noted that while the idea of two tier discovery “could be a good rule change,” (p204), he had concerns with the rules defining categories that should or should not be considered accessible – citing the example of archives, which in some companies may be reasonably accessible, while in others may be stored in an inaccessible manner. (p204-07)
-Spoke in favor of a safe harbor provision. (p207-08)

Ian Wilson:
-Spoke in support of two tier discovery, but noted the danger of establishing any “bright-line test” for certain storage media: “… the touchstone of reasonable accessibility from the reasonable accessibility test is the burden imposed in accessing the data. The storage media alone should not govern the determination of a reasonable accessibility.” (p212)

Jeffrey Cody:
-Noted the effectiveness of the Texas rules of civil procedure in addressing electronic discovery, pointing to the importance of its bifurcated, two-step approach and its mandatory cost shifting as the keys to its success. (p220)

Al Cortese:
-“… really this seems to be coming down to … attempting to make discovery more efficient, less costly, less burdensome, more effective, and to include the signals to the bar and the bench that it is essential to have elements like a safe harbor and two-tier approach to discovery …” (p226-227)