E-Discovery: the Good, the Bad and the Ugly

With much fanfare, in December 2006 the Federal Rules of Civil Procedure were changed to address electronic discovery issues. After those changes, the rules provide that emails, text messages and other forms of electronically stored information ("ESI") are discoverable, just like any other document. Amongst other changes, Rule 26 now requires parties to discuss ESI at the outset of litigation during their "26f conference," specifically conferring upon "any issues related to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." Once a party receives notice that they are potentially going to be sued, the rules also now require a party to take reasonable steps to preserve ESI that could be relevant to that lawsuit.
 
In the months leading up to these changes, lawyers gave many dire warnings to their clients over the costs of the coming e-discovery changes and the adverse effects that failing to preserve ESI could have on a party during litigation. Now that the changes to Rule 26 have been in place for more than a year, clients are now asking the following question: how is it all shaking out? Has the case law imposed dire consequences on employers who do not do a perfect job of preserving ESI, or instead have courts been reasonable in their interpretation of Rule 26's e-discovery requirements?
 
Unfortunately, there are no clear answers to these questions. Results have tended to vary depending on one's judge and jurisdiction. As a general proposition, the case law on e-discovery can be divided into three types: the good, the bad, and the ugly.
 
I. The Good. Some courts have used common sense and reasonableness, so as to
not impose overly burdensome and expensive requirements on litigants.
 
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II. The Bad. For every ESI decision issued that is favorable to defendants, another decision can be found that imposes onerous e-discovery obligations on a litigant.
 
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III. The Ugly. Some decisions on ESI have been downright ugly. PML North America,
LLC v. Hartford Underwriters Ins. Co., 2006 U.S. Dist. LEXIS 94456 (2006), a case out of the Eastern District of Michigan, is an extreme example of the harm that a defendant can suffer if it does not adequately preserve ESI.
 
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IV. Other Notable Results. In the past year, there have been a multitude of opinions
issued on ESI disputes….