Good Cause Is Bad Medicine for the New E-Discovery Rules

Abstract

This Article takes a critical look at the e-discovery amendments to Rule 26(b)(2) that provide that electronically stored information that is not reasonably accessible shall be discoverable only if the requesting party can establish good cause. The intent of these amendments was to limit the cost and burden of discovery and to ensure that similarly situated litigants are treated similarly with respect to discovery of electronically stored information. I conclude that the e-discovery amendments to Rule 26(b)(2) will be ineffective because they increase judicial discretion - likely leading to disparate treatment of similarly situated litigants - while providing no new protection against the cost and burden of discovery. First, the courts' persistent reliance on the liberal rules of discovery mantra will not be overcome in the absence of express direction. Second, the good cause standard is so vague that it is both toothless and meaningless. Third, the e-discovery amendments to Rule 26(b)(2) build on the structure and standards of three earlier rounds of discovery amendments. But experience has shown that these earlier amendments were ineffective in reducing the cost and burden of discovery - largely because courts have been unable to resist the siren song of liberal discovery, particularly when faced with applying a toothless, meaningless good cause standard. Finally, review and application of the text of the discovery rules confirms that the amendments are wholly ineffective.

This serial, but ineffective, amendment of the discovery rules has created great divides between (a) the stated intentions of the Rules Committee in amending the discovery rules, (b) the actual language of the amended discovery rules and (c) the experience of courts and practitioners in resolving discovery disputes under the discovery rules. The rules that establish the scope and limitations of discovery no longer mean what they say. Instead, they mean only what each judge thinks they ought to say or what the judge recalls that the rules used to say. To bridge this divide, I offer an interpretation of the discovery rules that gives meaning to the language of the rules, limits the cost and burden of discovery and is consistent with the Supreme Court's prior (but ignored) interpretation of the good cause standard elsewhere in the discovery rules.

Keywords: electronic, discovery, e-discovery, civil procedure, practice, procedure, rules, amendments, accessible, good cause

JEL Classification: K4, K40, K41, K49, K10, K19