Businesses are increasingly leveraging technology and moving to more paperless environments. For this reason, modern business litigation almost always requires some discovery of electronically stored information (ESI). Depending on the nature of the dispute, relevant ESI may be found on corporate servers, local hard drives, thumb drives, laptops, tablets, smart phones, or in the cloud.
Unfortunately, as some businesses know all too well, the process of collecting, reviewing, and producing ESI created and stored by different potential witnesses in so many different places can be incredibly expensive. For this reason, some lawyers choose to use ESI as a weapon, attempting to make ESI discovery as expensive as possible for the producing party in the hope of leveraging a favorable settlement.
Thankfully, the rules of the game are starting to change in order to address these realities and make the discovery process more efficient and cost-effective. In fact, new discovery rules in Minnesota and proposed changes to the Federal rules are intended to reign in the scope and cost of ESI discovery, which should help to ensure that disputes are resolved on the merits, and not by financial attrition.
Recent Changes to the Minnesota Rules of Civil Procedure
In July 2013, two amendments to the Minnesota Rules of Civil Procedure went into effect that will likely have an impact on ESI discovery disputes:
Proportionality is not a new concept in the ESI discovery world, but there is a movement afoot to bake the concept into the discovery rules. Now that the proportionality concept has found its way into the Minnesota rules, litigants faced with unreasonable and overly burdensome ESI requests in Minnesota courts will have another arrow in their quiver to fight back.
Proposed Changes to the Federal Rules of Civil Procedure
In August 2013, proposed changes to the Federal Rules of Civil Procedure were released for public comment.1 Proposed amendments that would have a meaningful impact on ESI discovery include the following:
The proposed amendments to the Federal rules would not become effective until at least 2015, and the ongoing public comment period is the first of many stages these proposed amendments must go through before final approval. At this early stage, however, it is clear that some of the proposed amendments are specifically intended to curb the use of ESI discovery as a cost-escalating weapon.
Unfortunately, even if the proposed amendments are approved as drafted, they will not eliminate the burden and significant expense associated with ESI discovery. For that reason, as we begin the new year, businesses would be wise to reevaluate their document management policies and procedures, minimize their ESI footprints to the extent possible, and have a plan in place to respond to ESI requests in the event of litigation.
1 The public comment period will end on February 15, 2014. A link to the full text of the proposed rule changes may be found at: http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx.
This article is provided for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. You are urged to consult a lawyer concerning any specific legal questions you may have.
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