SURVEY SHOWS CORPORATE COUNSEL SUPPORTIVE OF DIGITAL DISCOVERY AMENDMENTS
(New York, NY) - January 25, 2005: The American Bar Association Section of Science & Technology Law published findings this month from its Digital Evidence Project Survey. The survey found that the vast majority of corporate counsel agreed that the Federal Rules of Civil Procedure (FRCP) needed to address the new demands of electronic discovery. The survey was designed to test the reception of FRCP amendments proposed last November and gauge current industry standards.
Evidence Exchange; Lewis and Roca, LLP; and Navigant Consulting, Inc. jointly sponsored the survey and donated ten dollars to the American Red Cross tsunami relief efforts on behalf of each respondent.
Respondent Population:
The survey queried over 260 highly experienced corporate counsel concerning their practices with electronically stored information and their familiarity with the proposed changes to the Federal Rules of Civil Procedure. Since 2000, the survey respondents’ companies have dealt with over 60,000 matters involving electronic discovery issues. According to Digital Evidence Project member and Evidence Exchange CEO and cofounder, Michael Prounis, “The respondents’ intimacy with such issues makes this survey a comprehensive, and perhaps unique, collection of experience and views on the subject of discovering electronically stored information.”
FRCP Amendment Awareness:
The survey found that while most respondents dealt with electronic evidence in their most recent case, a full 82.4 percent of the respondents were either unaware of, or unfamiliar with, proposed FRCP amendments that would govern electronic discovery.
The survey, however, did not assume familiarity with the amendments. Once made aware of the amendments—which range in scope from explicitly stating that electronically stored information is discoverable, establishing a two-tier definition of data as accessible or inaccessible, and providing a framework for meet-and-confer sessions between parties—the respondents largely supported the proposed changes.
If approved by the Standing Committee on Rules of Practice and Procedure, the Judicial Conference of the United States will consider the FRCP amendments for December 1, 2006 ratification.
Electronically Stored Information Trends:
- 66.3 percent of respondents reported that their organizations do not have cost-effective procedures for searching ESI to identify privileged materials.
- The inadvertent production of privileged materials does occur; 15 percent of respondents indicated that either their corporation, the opposing party, or both unintentionally produced privileged materials.
- In their most recent cases, many respondents produced electronic evidence in multiple formats. Despite this new heterogenic approach to ESI production, however, the majority of respondents (46.3 percent) indicate that they chose convert electronic data to paper.
The Digital Evidence Project Survey Subcommittee and Michael Prounis, Evidence Exchange CEO and cofounder, will release an official white paper detailing the survey’s results this summer.
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