E-Discovery Today: The Fault Lies Not In Our Rules . . .

hausfeld.pdf (application/pdf Object).

THE FEDERAL COURTS LAW REVIEW
Volume 4, Issue 2
2011
E-Discovery Today:
The Fault Lies Not In Our Rules . . .
Milberg LLP and Hausfeld LLP*
TABLE OF CONTENTS
I. INTRODUCTION ……………………………………………………………………….. 2
II. STATE OF THE UNION ………………………………………………………………. 6
A. The Reality of Electronic Discovery and the Data Deluge ……… 6
B. The Essential Role of Discovery in American Jurisprudence: Valuing Fair Resolution on the Merits Over Gamesmanship …………………………………………………………………. 7
C. The 2006 Amendments to the Federal Rules Were Designed to Address the Unique Issues Raised by Electronic Discovery ……………………………………………………….. 11
III. THE CURRENT FEDERAL RULES ARE WORKING ………………………… 14
A. Although The Amended Rules Have Been in Effect for Only Three Years, the Available Evidence Shows the Rules Are Working ………………………………………………………………….. 14
B. The Current Rules Protect Against Overbroad or Overly Burdensome E-Discovery: The Importance of Proportionality ………………… 20
C. There Has Been a Quantum Leap in the Development of E-Discovery Law Since the 2006 Amendments ………………….. 23
D. Use of Pretrial Conferences and Scheduling Orders is
* This paper was written by Milberg LLP and Hausfeld LLP for presentation to the Conference on Civil Litigation sponsored by the Advisory Committee on Civil Rules, held at Duke University Law School on May 10 and 11, 2010 (the “Duke Conference”).

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