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On behalf of Buchanan Ingersoll & Rooney, CEO Jack Barbour wrote to the Committee on Rules of Practice and Procedure to provide comments on the proposed amendments to the Federal Rules of Civil Procedure. The proposed amendments are a response to the skyrocketing cost of discovery in the digital age, when even a small dispute can require the review and production of hundreds of thousands of electronic documents. The rule changes are designed to make the cost of discovery in civil litigation proportional to the amount at stake, eliminating the possibility that litigants could use the prohibitive cost of litigating a meritorious claim or defense as a club to force an unfair settlement. Noting that Buchanan Ingersoll & Rooney “has significant experience in business litigation, including antitrust lawsuits and class actions, intellectual property litigation, and electronic discovery counseling, primarily on behalf of large, corporate defendants,” Barbour stated that the firm is “acutely aware of the challenges presented by the current version of the Federal Rules of Civil Procedure,” citing several examples of grossly disproportional discovery costs in recently-published decisions and from the personal experience of Buchanan’s own clients. The latter included a firm client that was forced to collect and review over 1.4 million electronic files in a relatively small matter, representing electronic discovery costs of almost $100,000 for this one task alone in a case worth less than $1 million. In light of these client experiences, Barbour expressed Buchanan’s strong support for the Committee’s proposed amendments Rule 26 as a means to “help curtail the often-overwhelming scope of electronic discovery in today’s federal litigation.”

Barbour also expressed the firm’s approval of the Committee’s suggested changes to Rule 37, which would create a uniform, national standard regarding the preservation of electronically stored data. The change would help ease the burden of document retention on businesses, many of whom are currently forced to engage in “over-preservation” or “defensive preservation” of excessive amounts of electronic files in order to avoid being accused of spoliation. However, Barbour expressed concern over language in the proposed Rule 37 that would allow for sanctions in the case of “willful or bad-faith” destruction. As many corporations have document retention policies in place that call for the routine, intentional destruction of documents deemed non-essential after certain a period of time as a basic cost-saving and document management tool, any document lost to such a routine process could be described as “willfully” or knowingly destroyed even in the absence of any bad-faith motive. Thus, Barbour suggested that the proposed amendment be modified to allow for sanctions only in the case of willful and bad-faith destruction, reserving punishment only for those who destroy documents with the intent to obstruct discovery or some other improper motive.

Overall, the firm believes the proposed changes from the Committee will be a positive alteration to the Federal Rules of Civil Procedure and, with the sole caveat regarding the sanctions provisions of Rule 37, fully supports their implementation.

Read Buchanan’s full Letter to the Committee on Rules of Practice and Procedure here.