The Intent and the Reality of the FRCP


Mary Mack, former Corporate Technology Counsel with Fios, Inc., was recently appointed the executive director of ACEDS. People planning to acquire the ACEDS eDiscovery certification might be interested to know that Mack is the author of A Process of Illumination: The Practical Guide to Electronic Discovery. While the edition I have was published in 2008, it could still serve as a good guide to the ACEDS perspective on eDiscovery.

In the first chapter of the book, "What Happens During Electronic Discovery?", Mack includes a chart with three fields "Description", "Intent"; and "Reality" for a dozen different Federal Rules of Civil Procedure related to eDiscovery: Rules 16(b); 26(a); 26(b)(2); 26(b)(5); 26(f); 33(d); 34(b); 37(e); 37(f); 45; and Form 35, in the context of how they were amended in 2006. For example on FRCP 26(f):

Description: Requires all parties to sit down together before discovery begins to agree on some form or protocol.

Intent: Rule encourages uniformity, structure and more predictable motion practice.

Reality: Opportunity to shift preservation costs if prepared for these discussions; otherwise opportunity to get painted into a corner.

The chart is a very good thumbnail sketch of how the FRCP applies to FRCP issues.

If you're looking to the book of a guide to her overall philosophy on eDiscovery, note that Mack begins her book emphasizing the need to issue a hold to preserve ESI as soon as litigation is threatened. She quotes Laura Kibbe, an ex-ediscovery counsel at Pfizer, advising 'Don't play hide the ball . . . Negotiate scope and need early on." She describes ESI as being multi-dimensional - not under the control of a single user, and usually not capable of being destroyed without a trace. Ken Withers of the Sedona Conference is quoted to endorse the importance of effective eDiscovery lowering costs, "More money is probably spent litigation e-discovery problems than in litigating class actions." ESI is fluid and pricey, and must be addressed with urgency.


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