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Federal Courts Considering Revisions to Electronic Discovery Rules

As any employer who has been through a federal court lawsuit can attest, litigation costs make the defense of employment lawsuits a costly proposition. In many cases, the costs of defense are greater than the potential recovery if the employee wins the case.

Perhaps the biggest driver  of litigation costs is what has become known as “electronic discovery” or “e-discovery.”  This is the process of  preserving, reviewing,  and disclosing emails and other electronic communications (including text messages, hard drives, smart phones, and similar devices).  A 2006-2008 survey of Fortune 200 companies found that many were paying upwards of $600,000 in discovery costs per lawsuit.  Since then, that number has risen sharply, sometimes exceeding $1 million.

Now, there may be a chance for  meaningful reform. The federal Advisory Committee on Civil Rules is considering amendments to the Federal Rules of Civil Procedure that would reduce the costs and burdens of e-discovery.  Specifically, the amendments would: (1) explicitly confirm a court’s  authority to require the party requesting e-discovery to pay for it; (2) narrow the scope of discoverable information to that relevant to a party’s claims or defenses; and (3) limit the circumstances where sanctions may be imposed on parties who discard information to those where the party “acted willfully or in bad faith” AND  the loss caused “substantial prejudice” to the opposing party.

The Advisory Committee is considering public comments until February 15, 2014.  After that time, it will decide whether to move forward with some or all revisions. If the changes are approved by the Supreme Court and Congress, they would take effect on December 1, 2015. readers interested in commenting on the changes my click here for further information.

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