Is E-Discovery so Different that it Requires New Discovery Rules? An Analysis of Proposed Amendments to the Federal Rules of Civil Procedure

Abstract

The U.S. Judicial Conference Advisory Committee on Civil Rules recommended a package of proposed amendments to the Federal Rules of Civil Procedure to address issues raised by discovery of electronic information. The recommendations were based on the theory that discovery of electronic information is truly different from discovery of non-electronic information and that the differences require a special set of discovery rules. This Article tests the bases for the Advisory Committee's theory and concludes that there are five true differences between discovery of electronic information and discovery of traditional hard copy information, but two of the differences are addressed by the Rules in their current form. This Article also concludes that the package of amendments proposed by the Advisory Committee fails to adequately address two of the three identified true differences between discovery of electronic information and non-electronic information. The package also includes several amendments that are unnecessary, unwise and not based on any factor unique to discovery of electronic information.

The Supreme Court approved the package of amendments, the amendments have been transmitted to Congress and they will take effect on December 1, 2006, unless Congress enacts legislation to reject, modify or defer the amendments. This Article provides insight into the process that produced the "e-discovery" amendments and it identifies a number of issues and problems that will arise once the amendments take effect.

Keywords: e-discovery, electronic, discovery, procedure, amendments

JEL Classification: K40, K41