E-Discovery: You Have To "Backup" Your Claim

In a follow-up to the first e-discovery blog entry, it seems that the courts are starting to hear cases on the new e-discovery rules. The courts are starting to work. It's not that the courts haven't been busy, but just now, we're starting to see rulings that take into consideration the new Federal Rules of Civil Procedure (FRCP).On February 1, a Minnesota District court concluded that an order for discovery was valid, even though the defendant argued that the order put an undue burden on them. The defense was trying to claim that FRCP 26(b) (2) (B) just plain costs too much to retrieve data from archives. This, so suggested the defense, was in accordance with the rule, and accordingly, no production was required. Not so fast, said the court. You can't just say that it's too expensive. You have to tell me why it's too expensive. What does this mean to you? The case suggests that FRCP 26(b) (2) (B) may not be the safe harbor that many commentators had been hoping for. If the decision holds, and more courts adopt it, you'll have to take the time to develop the case for "why you can't produce." Will that be more expensive than just producing the documents? That's a call that you, and your lawyer, will have to make.

Michael Sears is the principal advisor on eDiscovery at Mathon Systems. He is a member of the California Bar Association, and a frequent commentator at the nexus of the law, business and technology. Prior to Mathon, he founded a digital media company, was a senior executive with several public companies, and served on the boards of directors of both public and private technology companies. Michael holds both a Juris Doctorate and an MBA from Stanford University. Greg MacSweeney is editorial director of InformationWeek Financial Services, whose brands include Wall Street & Technology, Bank Systems & Technology, Advanced Trading, and Insurance & Technology. View Full Bio