From the Conclusion:
“…The prelitigation duty to preserve electronically stored information desperately needs attention by rule or otherwise. The trigger of the duty to preserve is fraught with uncertainty. Inherent power is employed within the framework of litigation governed by rules but is currently subject to no rules. If inherent authority presupposes ‘bad faith’ conduct, then that message has not reached all of the circuits…
The e-discovery amendments to the rules of civil procedure have worked reasonably well. If there are areas of immediate concern with respect to e-discovery, they relate to the scope of discovery and the continued reliance on the ‘reasonably calculated’ language of Rule 26(b)(1); the relationship between production in a reasonably usable form and the limitation to production in only one form under Rule 34; whether to attempt to deal with discovery of backup tapes or similar costly-to-access information in a manner other than currently described in Rule 26(b)(2)(B); monitoring cost issues under Rule 45; and figuring out how to guarantee that lawyers and judges convert the 2006 changes made in Rule 26(f) and Rule 16 to just, speedy, and inexpensive decision making with respect to e-discovery…”
The full text is available at http://www.uscourts.gov…