Thursday, August 18, 2005

Dancing to the Little Guy Blues.

Have you ever lost your keys, misplaced your glasses, forgotten your billfold or purse, or left home without the grocery list? These errors I’m convinced are built into our human DNA.

Well, what if you’re a big Corporation? Have you ever misplaced that smoking gun memo that will cost you millions if it falls into the hands of the Plaintiff’s attorney? Have you ever accidentally cleaned up your electronic storage system so that numerous documents that would hurt your defense of a case unfortunately are lost forever? Or have you ever accidentally turned over a secret document that reflects your conversations with your attorneys during which they and you bemoan that you’ve been caught red handed breaking civil and criminal statutes? These errors I’m convinced are built into our corporate DNA.

Now, before your eyes glaze over, I want to quickly inform you that an effort of good intentions is underway and nearly completed, to create rules in the federal courts that address this corporate DNA problem. The rules have to do with one side (usually the little guy) getting numerous, voluminous, gargantuan amounts of electronically stored documents from the other guy (usually the “big guy”). Why should you care? You don’t practice law (or maybe you do, but don’t care anyway). Well, in an age where the dirt is stored electronically, using an archaic system of digging based on 20th Century discovery rules may not dig up much at all, and that may mean a lot to you. If you’re driving a vehicle, or taking a medication, or incurring a bank charge, or buying a baby crib, or virtually anything, you may find you (and your consumer rights lawyer) cannot make the case for a whole class of people without getting detailed, voluminous records related to the product or service in question.

The bottom line: the proposed federal E-Discovery Rules define the limits of how much searching, retrieving, and storing a corporation has to do to satisfy a “discovery” request. Basically, the Rules are heavily influenced by a Defense lobby that would allow Corporations to “take back” a privileged document accidentally included in a turn over of a large amount of electronic data. The rules also state the search effort is limited to electronic data that is “reasonably accessible” and then provide a loose definition of that phrase. And, of most popularity with the “big guy” is that there is a “safe harbor” from sanctions if data is “accidentally” destroyed. Some “big guys” are more accident prone than others, I suspect.

OK, I know you're on the edge of your seat with this titillating story-line. Maybe the story is really a bit philosophical. Technology has created new dance steps in the business of litigation, but the “big feet” keep “stepping on the toes” of the “little guy”. I know I sound a bit cynical, but maybe I’ve just got the “little guy” blues. The Golden Rule of the law, some cynics contend, is that the one with the gold rules.

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