“The IGI generally supports the proposed Amendments in their present form. As further explained below, we believe that it would be useful in connection with the weighing of what constitutes “reasonableness” in preserving data under Rule 37(e), to have the advisory notes to Rule 37(e)(2) explicitly reference the fact that information management in the digital age is complex and nuanced, and that there is no “one” solution to solving the problem of over-accumulation of records and information leading in turn to issues surrounding over-preservation. We also believe that the advisory notes should go on to say that there are a variety of advanced technologies, tools and techniques emerging in the marketplace that, if used properly by corporations and institutional actors, may help to reduce the level of over-preservation that is of such evident concern.

While the adoption of a national standard in e-discovery – at least at the federal level – serves to provide clarity and is otherwise well-intentioned, our overarching view is that true success in reducing the cost and complexity of litigation will come primarily from technological changes in the corporate office environment, coupled with greater education of the bench and bar on how electronically stored information may be managed appropriately in a time of accelerating technological change. For us, it is important that the Committee understands the greater information governance context that particularly large corporate actors increasingly find themselves in, when thinking about the task of “fixing” particular federal rules due to perceived problems with the way in which current civil discovery is conducted.”

— Excerpt from Information Governance Initiative Commentary on Proposed Changes to the Federal Rules of Civil Procedure

The US Judicial Conference Advisory Committee on Civil Rules has proposed amendments to the Federal Rules of Civil Procedure, and has asked for public comment. Amendments to these same Rules in 2006 are often cited as demarcating the beginning of the current era of electronic discovery.

Given the importance of these Rules, the IGI decided to submit a comment to the Committee. There over 2000 comments on these proposed revisions.

Providing our commentary is part of the Information Governance Initiative’s commitment to public advocacy for information governance.

You can find our comment, drafted by Jason R. Baron, Co-Chair of the IGI, here on the website. All comments are available here. More information about the Rules and the comment process is available here.

Photo Credit: Barclay T. Blair