To Say that the Courts Have Applied the Newer FRCP Amendments Conservatively is Being Really Generous

Synopsis Part 1:  To Say that the Courts Have Applied the Newer FRCP Amendments Conservatively is Being Really Generous

Conducted October 25, 2007

By K.E.H. Polanski writing for DCIGInc.com

Daniel Garrie has his J.D. degree from Rutgers University School of Law, is admitted to practice law in New York and New Jersey, and currently serves as editor-in-chief of the Journal of Legal Technology Risk Management.  Mr. Garrie also has M.A. and B.A. degrees in computer science from Brandeis University.  Mr. Garrie has worked around the world with various government agencies and corporations including the U.S. Dept of Justice, and has published more than 30 articles in scholarly and industry legal journals worldwide.

Kelly:  Daniel, in your work consulting with legal counsel to help them synchronize their policies and their IT, what is the mood of legal counsel out there?

Daniel:  For the most part, there is a strong sense of fear in ensuring policies meet the latest rules and legislation, especially because the legislation is constantly changing.  To say that the courts have applied the newer Federal Rules of Civil Procedure (FRCP) amendments conservatively is being really generous.  People are realizing that there is a higher level of accountability now, and saying "we didn't manage our data properly"is no longer an excuse that will stand up in court.  Courts are not demonstrating leniency or understanding when companies say, for example, that they didn't do a legal hold on their data.  And legal hold is just one example. 

Kelly:  There seems to be a lot of confusion in how to expect courts to interpret the laws that the FRCP amendments didn't really clear up.  Is this true?

Daniel:  Yes-it's a complicated situation.  There are state and local laws which companies must comply with if they are facing litigation on a local level.  Then, federal rules spell out a different set of guidelines.  Add to that a huge variation in legislation around the world - and it's constantly changing.  If you are a company doing business in all of these jurisdictions, then you have to be prepared to comply with any and all of the respective governing laws.

The opinions leading into the FRCP amendments resulted from the good work of people involved with the federal rules committee they have done a lot to provide some guidelines to the courts and this has helped to clarify what is reasonable versus what is unreasonable to discover.  While their opinions help to inform the guidelines at the state and local levels, a huge amount of variability still exists.

Kelly:  Give me some examples of how the laws governing eDiscovery can be variable.

Daniel:  There is the whole process question of when and how electronic discovery is done.  For example, the State of New Jersey requires a subpoena - and if you lose something, it is written in the law that you can't be sanctioned if you can show it was lost through routine operations.  At the federal level, discovery doesn't require a subpoena and it's up to the judge's discretion as to whether a business is going to get sanctioned.   

Part 2 of DCIG's interview with Daniel Garrie will appear next week.  If you would like to communicate directly with Mr. Garrie, he can be reached at:  Daniel.Garrie@gmail.com

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