Proposed Changes to FRCP – Compelling or Buzzard Chow?

With corporate ESI “haystacks” frequently measured in exabytes (and metastasizing), the sheer volume of ESI makes eDiscovery a risky endeavor – the possibility of missing some relevant needle increases substantially with every additional gigabyte of “un-governed” ESI. Adding to the risk are the myriad ESI forms and formats present in most companies’ data piles, and the creative techniques of individual custodians – like slicing, dicing and storing relevant information outside the ‘sight-lines’ of the IT organization, oftentimes sharing the now-untracked “extracts” with other parties (including partners and suppliers outside of the company).

In the absence of a technology “easy button” (that unfulfilled promise of some technology vendors which, when pressed, magically finds all of the ESI relevant to a matter regardless of file type or tortured “data extract and analysis” path), the fear of vulnerability to spoliation claims roosts like some plaintiff-buzzard on the periphery of seasoned eDiscovery teams’ weary minds. Perfection? Not even the proverbial snowball’s chance. The better question is, how much is good enough to keep the buzzard’s gastronomic aspirations unfulfilled?

Recent history in cases like Pension Committee, and in courtrooms like Judge Peck’s, suggests that the definition of “good enough” is becoming clearer – and more narrow – as the post-2006 era of blissful technology ignorance fades. While “perfection” remains off-limits, the minimum level of due diligence and competence required of signers of 26(g) certifications continues to rise in many jurisdictions. Judges are increasingly able to “sniff out” inaccurate (or worse – disingenuous) assertions of compliance, and the criteria for good-faith, “to the best of my ability, yer honor” credibility is rising in tandem. Changes to the federal rules that aim to mute outrage over the risks and costs of discovery obligations may ultimately come to pass.

Certainly, the debate over the rules’ effectiveness, and what changes are necessary and prudent to address perceived flaws, will likely continue as long as rules shepherding professional arguers exist. But, rules changes are a temporary fix that can’t really address the root issue – e.g., the explosive growth of (largely) ungoverned ESI, in many (most?) corporate litigants’ information ecosystems. Arbitrarily limiting the scope of required discovery diligence to some subset of an undocumented, unmanaged and unbridled information behemoth (even if that is possible) will eventually produce an equally unmanageable corpus. It’s simple math – as the ‘pie’ gets more horribly bloated, so do the slices. Until some vendor actually can deliver the elusive über-tool of eDiscovery (to those waiting: insert thumbs here & prepare to hang painfully), wise companies will avoid the temptation to rely solely on measures (like rule changes) which are outside their control.

Rather, an opportunity within the control of every ESI-dependent party in the world – a commitment to improving the governance and management of their own ESI – provides a more reasonable hedge against eDiscovery risks and costs to those who embrace it. It ain’t easy (Google “Sarbanes-Oxley”), and it’s certainly not a trivial investment, which will lead shortsighted and naive companies to categorically reject the notion of actually managing how (and by whom) their information is consumed. Building a sound information-governance capability, despite its potential for benefits in eDiscovery and other hot-button issues (like market intelligence and information security, to name just two) is not for the faint of heart.

Buzzards are adaptable, smart opportunists – happy to feast on the unprepared. You can almost hear the gullets growling.

About Joe Treese at ESIDence

ESI Governance & Risk Management
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