Discovery Rules Reform Offers Potential for Meaningful Savings

In a study described as “the first, and to date only, systematic effort to measure the extent and costs of preservation activity across a broad sample of companies,” Professor William H.J. Hubbard of the University of Chicago Law School details findings based on data collected from 128 companies.

Why is the study significant? Because it aims to provide empirical, quantitative data from a cross-section of companies on the costs and burdens of preservation obligations for companies operating under today’s legal environment.

The preservation cost survey was commissioned in 2011 by the Civil Justice Reform Group (CJRG). The study’s summary of findings notes that CJRG did not participate in the design of the survey questions, have access to survey responses or data, nor was it involved in the analysis of the data.

Key findings include:

  • Both larger and smaller companies report similar preservation burdens. Over 79% of respondents reported a “great extent” or “moderate extent” of preservation burdens.
  • Companies report “overpreserving” to protect against serious uncertainty in the case law. (Professor Hubbard’s executive summary notes that “[r]ules amendments that better define the standards for sanctions for failure to preserve could address this phenomenon.”)
  • Only a fraction of preserved data is ever collected. On average across all survey respondents, slightly less than half of all preserved data is ever collected, processed, and reviewed. Even less is produced or eventually used in litigation.
  • Rule changes with even modest effects would generate meaningful cost savings.

The summary of findings and the final report, each dated February 18, 2014, were submitted to the Committee on Rules of Practice and Procedure in connection with the proposed amendments to the Federal Rules of Civil Procedure.