December 2011 e-discovery preservation rule-making update

For better or worse, e-discovery is an incredibly important aspect of class litigation. As a result, we regularly monitor e-discovery rulemaking to stay on top of the law on this critical issue. Here is the latest:

The House Judiciary Subcommittee on the Constitution convened a hearing on December 13, 2011, on the topic of "The Costs and Burdens of Civil Discovery." Both sides of the cost vs. justice debate got some air time before Congress.  In the end, the Committee decided that the issue is already being addressed by the Federal Judicial Conference's Civil Rules Advisory Committee and Congress need not duplicate these efforts.  This is not surprising. Judicial rule-making has traditionally been delegated to the Judicial Branch through the Rules Enabling Act.  Direct legislation by Congress on this matter, while within Congress’s power, would be a major shift in policy-making.   

As for the status of the deliberations by the Federal Judicial Conference's Civil Rules Advisory Committee, the best that can be said is that things remain very much up in the air.  A recent Q&A with John Rabiej, The Sedona Conference’s Director for Judicial Outreach, provides some interesting insights into the rule-making process generally and the opposing coalitions involved in the present debate over preservation rules.