Only Yesterday: Reflections on Rulemaking Responses to E-Discovery

Abstract

I take my theme for introducing e-discovery issues from Frederick Lewis Allen, a popular historian of American social trends who in 1931 published a book entitled Only Yesterday. The book chronicles the remarkable shifts in American society between the end of World War I in 1918 and the stock market crash in 1929. My reason is that "only yesterday" we did not have to worry about discovery of electronically-stored materials ("e-discovery").

The shift from a decade ago to now is quite striking. For example, in a 1997 case against Prudential Insurance Company, a challenge was made to Prudential's compliance with the judge's directive that pertinent materials not be discarded. Prudential communicated the judge's order to its agents by e-mail, which would strike us today as obviously sensible. But then-only yesterday-sixty percent of the agents did not have e-mail, and many of those who did were unable to use it. Undoubtedly, things have changed a great deal in a short time.

Allen's 1931 book was a best seller, and he continued to write in the same vein, including a 1952 book entitled The Big Change that examined the changes in American society between 1900 and 1950. The very first big change that Allen noted in that book was technological-the replacement of horses by cars'-and the book repeatedly linked changes in American society to technological innovations.

In this introduction to our conference, I hope to identify the big changes against which the recent emergence of e-discovery can be evaluated as we consider whether the Federal Rules of Civil Procedure ("Civil Rules") should be amended to cope with the new challenges of e-discovery. After examining those big changes, I will describe the manner in which the Judicial Conference Advisory Committee on Civil Rules ("Advisory Committee") has approached the topic, and offer reflections on the reasons for treating e-discovery as distinctive. Lastly, I will propose caution about the possibility that rule changes will assuage all the concerns that have been raised about this form of discovery.