Dec. 1 is almost here, a significant date in the legal world when amendments to the Federal Rules of Civil Procedure will take effect. These rules govern electronic discovery and, in theory, are supposed to reduce litigation costs.
However, it turns out the rules may actually increase litigation costs, especially regarding work that must be performed within the first 120 days after a lawsuit gets filed. What’s more, if a party gets it wrong by not properly producing electronic discovery, the resulting penalties can be gargantuan.
The new rules are designed to set out early structure, uniformity and predictability when it comes to e-discovery. Yet, from the very start of a case, the parties need to start evaluating with their IT teams and outside counsel what they need to do to produce relevant electronic data. That effort can be enormous, as data can be located live on a network across multiple servers, on backup tapes, on hard drives, laptops and personal digital assistants.
[...] E-discovery has wrought a measure of confusion as the Canadian legal system struggles to adapt to the rapid injection of the Information Age into the civil litigation process. Behind much of the confusion is the sense of an intuitive link and/or conflict between the discovery of electronic documents and modern notions of privacy. [...]
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