Congress Hears Testimony Regarding E-Discovery

by Hubbard & Jenkins

On December 13, 2011, Congress held a hearing to discuss the rising costs of civil discovery, labeled, “The Costs and Burdens of Civil Discovery.” The purpose of the hearing was to inform Congress about the progress the Federal Rule of Civil Procedure Sub-committee on E-Discovery is making in proposing amendments to FRCP's discovery rules. Of particular concern to the committee is whether the burdens and costs of e-discovery are endangering the FRCP’s goal of a “just, speedy, and inexpensive determination of every action and proceeding.”

Critics of the present rules argue that the rules are unclear, especially with regard to a party’s obligation to preserve electronic information. Their view finds support in a recent study completed by the RAND Corporation’s Institute for Civil Justice which found that “Organizational litigants were generally not confident that their preservation choices were defensible ones. They asserted that this uncertainty resulted in preserving far greater volumes of data than was ever likely to be collected as part of actual litigation.” The study also found that “Preservation appears to be the e-discovery area most in need of standardized, unambiguous, trans-jurisdictional authority. Guidance is needed for the proper scope of the ESI preservation duty, the manner in which that duty should be discharged, and the types of behavior that would be considered sanctionable.” Thomas Hill, Associate General Counsel for General Electric Company reiterated many of the criticisms found in the the RAND Corporation’s study.

Testimony at the hearing also stated the viewpoint of many practitioners and academics including us who believe that it is too soon to begin implementing changes to the discovery rules. Not all organizational clients believe that the costs of preservation are excessive. We participated in the recent Sedona Conference Working Group on Electronic Document Retention and Production survey of its members regarding the proposed changes to the rules. That survey found that some organizations are not necessarily concerned about the costs of preservation, which they see as only one faction of the much larger discovery costs such as attorney document review.

Our views on the proposed changes are in line with those expressed by Craig Ball in his excellent recent blog post entitled “A Fish Story." Our main take away from the Rand Corporation Study is that organizations do still do not have metrics in place to measure their preservation responsibilities. The solution to the e-discovery cost and risk puzzle is more education for practitioners and true organizational buy-in regarding developing the knowledge to utilize the latest technological tools available to reduce the risks and costs of e-discovery. The ostrich with his head in the sand approach which amounts to throwing one’s hands up in the air while screaming cost and burden is not acceptable. Members of the bar must be held responsible for failures to develop basic competency in abiding by rules that have been on the books for 5 years.

The consensus reached at the hearing was that the Federal Judicial Conference’s Civil Advisory Committee is actively studying the issue and that Congress does not need to intervene at this time. We will continue to monitor the debate. The sub-committee is expected to have proposed rule changes ready for review by March of 2012. The sub-committee is considering several approaches to amending the rules, but is reportedly leaning towards regulating the sanctions for discovery violations.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hubbard & Jenkins | Attorney Advertising

Written by:

Hubbard & Jenkins

Hubbard & Jenkins on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.