On September 9, 2011, the Discovery Subcommittee of the United Stated Judicial Conference Advisory Committee to the Federal Rules held a mini-conference in Dallas as the first step in a seven-step process to determine whether new rules should be adopted to address preservation and sanctions relating to electronically stored information (“ESI”). Our own John Rosenthal was one of the 25 judges and lawyers invited by the Subcommittee to answer questions focused on three primary areas: (i) whether rules are needed on the issues of preservation and sanctions; (ii) whether technology can solve the preservation problem; and (iii) what form a new rule(s) should take. Various companies, law firms and other organizations also submitted written comments both in advance of and after the mini-conference.

The Subcommittee was advised that preservation of ESI has become a tremendous burden on large and small corporations because of the absence of any clear guidance on when the preservation obligation arises and the scope of preservation to be undertaken. Participants noted that over-preservation of ESI is commonplace because of the threat of sanctions and the variety of standards being applied by different circuits (e.g., some require only a showing of negligence or gross negligence, while others require bad faith). The Subcommittee was also advised that while proportionality, cooperation through the meet and confer process, and improved case management are important aspirational concepts, they have failed to stem the tremendous burdens regarding the preservation of ESI. The participants (both from the plaintiff and defense bars) also agreed that technology is not likely to ease the preservation burden. To the contrary, continued growth in unstructured data, the movement of data to the cloud, the rapid adoption of social media, and the explosion in the storage of information within mobile devices (e.g., smartphones and tablets) serve only to increase the complexity and burden associated with ESI.

In advance of the mini-conference, the Subcommittee issued three proposed rules for discussion: Option 1 - a detailed rule addressing preservation triggers, scope of preservation and sanctions; Option 2 - a more general rule addressing trigger, scope and sanctions; and Option 3 - a rule that would only address the sanctions standard under Rule 37. No clear consensus was articulated among the participants regarding which of the three rules should be pursued, with the plaintifforiented law firms and the Department of Justice maintaining that any rule change at this time was premature. In contrast, corporations and defense-oriented firms maintained that uniform guidance is needed in the form of a specific rule that should include reasonable limits on the scope of eDiscovery, including presumptive limits on the number of custodians subject to preservation and collection.

The Advisory Committee will meet in November to determine whether to move forward with the rules process, and, if so, the specific type of rule(s) that should be published for public comment at its April, 2012 meeting.