The law, as a means of administering dispute resolution and criminal liability, must be able to adapt to revolutions in industry or technology. We are currently in the early years of a technological revolution that will only grow and continue to change the way humans live their lives. The use of computers and the Internet has changed the way people and businesses think and act. In today’s court system, a case (whether civil or criminal) is often decided by evidence produced and discovered before trial. As computers have become integral components of any successful business operation, the records on those computers have become more difficult to discover. Not only because of the difficulty of gaining access to an adversary’s computer records, but also because many experienced attorneys don’t even know what to look for when gaining access.

Added to the confusion is the lack of procedural and jurisprudential orientation. New discovery methods have hampered older, more traditional lawyers who bring with them the knowledge and experience of the days of pen and paper. The old rules are outdated, and in today’s world, if you can’t keep up with technology and advances in the law, you’ll be as ineffective as the pen and paper in your hand.

In response to growing demands for structure in eDiscovery, the ABA has proposed new amendments to the civil discovery standards related to the use of eDiscovery. In part, these proposed amendments are intended to provide guidance for the retention, destruction, and production of evidence. Electronic evidence presents many problems not previously experienced with more traditional forms of evidence. Certain forms of electronic evidence can be misleading and detrimental to one party or another, because a piece of evidence may represent only an initial draft of a document, containing information that leads to the inference of liability. From a simple printout of electronic evidence, it can be extremely difficult to determine whether that evidence is first draft or final draft, and whether that evidence has any impact on the dispute. In many ways, electronic evidence provides easier access because there’s no need to dig through cumbersome paper boxes, but going through the actual discovery process can exponentially increase costs for both production and discovery.

It takes a long time to trace information traces through a company network. From the plaintiff’s point of view, electronic evidence is difficult to destroy, as an extremely complicated and sophisticated process is needed to completely erase an electronic signature and the metadata associated with the files. As demonstrated, electronic evidence can sometimes be more difficult to find, but conversely, it is also more difficult to destroy. This juxtaposition of qualities can make a process that seems more concise in theory become more cumbersome and expensive when put into practice.

In response to these growing concerns, as part of its proposed amendments, the ABA has focused on electronic discovery issues ranging from pretrial conferences and electronically stored information to a party’s failure to discover or cooperate. For many plaintiffs’ attorneys, Amendment 37(f) is proposed, which states that:

“Unless a court order requiring the preservation of electronically stored information is violated, the court may not impose sanctions under these rules on a party where such information is lost due to the routine operations of its electronic information system. whether the party took reasonable steps to preserve the detectable information”. information.”

This is perhaps the most problematic (at least for the plaintiffs’ lawyers), because it effectively creates a safe harbor for the destruction of electronic evidence. Penalties would be prohibited when information is destroyed as a result of routine destruction practices. The rule says nothing about what is a reasonable destruction practice or whether a party must freeze those practices once it learns that there is a possibility of litigation. Other important proposed amendments include:

• Rule 33(d). Under traditional Rule 33, a party responding to questioning could produce business records as a substitute for responding explicitly to questioning. Under amended Rule 33(d), the responding party may produce electronic dates and records in responding to interrogatories, provided the requesting party can easily identify and locate the information sought.
• Rule 34(b). The proposed new amendments do not require a lawyer to choose a particular evidential format when responding to discovery requests, but their mere mention suggests a policy that favors electronic evidence. Where a requested production format is not specified, the defending party must present evidence in the form in which that information is normally maintained or, alternatively, in a form that is reasonably easy to access and use.
• Rule 26(b)(5)(B). This amendment addresses the inadvertent production of privileged or protected information. This rule will allow a party that inadvertently discloses inside information to recover it from the inadvertent receiving party, unless that party can demonstrate that it has a right to that information.
• Rule 45. This amendment to Rule 45 would essentially allow parties to subpoena information stored electronically pursuant to any of the other adopted amendments contained in the Rules.

These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the growing preference for electronic discovery. The legal world is changing and those attorneys who cannot keep up with the changes will be left behind. This move by the ABA should serve as a signal to those lawyers frightened by technology and advances in the law. Electronic discovery is here to stay, unlike those who refuse to accept changes to the judicial discovery process.