ABA Techshow 2007: Day 1

I am attending the American Bar Association's annual technology conference, The ABA Techshow, in Chicago this week. As day 1 begins to wind down, it is very clear that the recent changes to the Federal Rules of Civil Procedure related to discovery of electronically stored information (ESI) are, and will continue to be, THE hot topic and all parties agree that many questions remain open.

Federal Rule 34 now includes the language:

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained

Most every speaker, including Federal District Court Judge Shira Scheindlin (SDNY), has spoken in terms of "open questions", "facscinating issues", "problems", "concerns", "considerations" and the like. The ability to now discover essentially all digital documents and communications poses unanswered questions of form of production, feasibility of review for privilege, responsibility of the parties to preserve information in the face of litigation and even retention, preservation and destruction of information when litigation is not an immediate concern. Furthermore, the train headlight at the end of the tunnel is clearly the cost of all of the above, which quickly may become unwieldy. The questions are unending.

Consider:

• What do litigants do when their opponent uses custom software whose data is unreadable without the software?
  
• Can attorneys possibly know the IT systems of their clients well enough to properly advise them and make accurate representations to the court regarding retention and spoliation?
  
• Does production of TIFFs and load files deprive the receiving party of proper discovery of meta data?
  
• What type of technological support, if any, is the producing party required to give to the recipient?
  
• Has the individual or small business now been deprived of the ability to litigate in federal court due to the high cost of e-discovery?
  

It seems at this early stage that there will be questions, debate, frustration and trepidation for some time to come.