By: Dale Campbell & Brittany Shugart
The Federal Civil Rules Advisory Committee (the “Committee”) has proposed numerous rule revisions, several of which are designed to address discovery problems related to electronically-stored information (“ESI”). ESI discovery has become extremely complex and expensive as technology continues to expand into numerous and varying communication devices and data storage. ESI is located not only on the client’s main computer servers but also on each employee’s desktop, smart phone, and tablet device.
The complications of ESI discovery have led to what this writer considers to be a disturbing trend in commercial litigation. Litigation is frequently no longer focused on the facts of the case but, instead, on burdensome discovery fights frequently related to ESI, where one side or the other hopes to win the suit by trapping their opponents in an expensive discovery quagmire, unintentional deletion of historical ESI, or a simple good faith oversight in producing ESI.