You know that dream you used to have in school? The one where you arrive to your test having never opened the book, and in the worst nightmares, you forgot your pants… It still makes me shudder. Now imagine the same dream, but instead of a student in a classroom, you are the GC of a Fortune 500 company entering the courtroom empty-handed. The penalty for this nightmare is far worse than the traditional spanking.
A perk of working at one of the few intersections of Law and Technology is that I have the privilege of hearing these stories first hand. People are buzzing about the proposed changes to FRCP rules 26 and 37. At first glance, the amendments seem to provide a “true safe harbor” for parties who are imposed with undue burden for discovery. While aimed toward deterring fishing expeditions (requesting broad and often unrelated ESI from the opposing party), the changes have given false hope to larger companies hoping to remain in blissful ignorance. The narrowed scope of discovery does NOT excuse an organization’s archaic management of ESI. In fact, it provides a standard to which most companies, especially those of the Fortune 1000, continue to fall embarrassingly short.
The fact remains that courts are tightening the leash on companies who repeatedly claim that the relevance of ESI pales in comparison to the burden of finding everything. Larger companies used to be able to cower behind the excuse that there is simply too much information in too many places. They were right. Collecting data from multiple email servers, ECM tools, IMs, backup tapes, etc. was a backbreaking task. Data sources multiplied by the month and IT teams were running in circles attempting to preserve everything. It sounds a bit out of line to call these the glory days, but spoliation and proportionality were easy buzzwords to hide behind if all else failed. Times change and technologies evolve. The burden of finding relevant information withered into a few creative searches. As the eDiscovery effort diminished so did the defensibility of excessive burden. It seemed as if the courts woke up one morning to notice the wide range of robust and affordable technologies available to enterprises.
When I was a Boy Scout, my troop leader taught us what to do if we were ever lost in the Georgia backwoods. First, accept that you are lost. Second, find a point of reference. So here we are in the middle of 2014, unable to rely on claims of excessive burden or good faith spoliation. Many of us are lost in the woods, having not studied, and pantless. Accepted. Now, find a point of reference. The amendments to FRCP rules 26 and 37 are a good place to start. Is your eDiscovery process defensible under these changes? Forget lack of good faith, the new term is “bad-faith.” With the myriad of eDiscovery options in the market, there absolutely will be a solution to fit your budget. Whether you need a better way to proactively manage your data, a simple preservation tool, or an end-to-end suite, technology has come to the rescue. Starting today, every subpoena should begin with the header Produce or Perish. Don’t get caught in bad-faith with an eDiscovery process designed around old rules. It is time that we, as eDiscovery professionals, find our pants.