Tom O'Connor and Gavin Manes author article "Why Federal Rules Don't Need to Change and Why Changes Wouldn't Save Money"
01-25-2012, The Orange Rag - Gavin W. Manes and Tom O'Connor . . . 12/1/25/4985367.html
Tom O'Connor, Director of Professional Services, and Gavin W. Manes, President and CEO, recently wrote a guest article for the Orange Rag Blog covering the topic of Federal Rule changes for preservation. Read below for an excerpt, or click above to read the entire article:

In 2011, a strong movement established momentum and gave rise to a great deal of discussion about altering the Federal Rules on e-discovery to directly address preservation. The debate on the topic has been lively and heated at times. The strongest proponents for the changes have been corporate counsels, best exemplified by Thomas Hill, associate general counsel at General Electric, who testified before Congress last fall that the current Federal Rules of Civil Procedure (FRCP) result in companies wasting billions of dollars on unnecessary document preservation and production. He indicated that part of the problem is that companies must preserve documents before a lawsuit is filed, therefore they often preserve even when no lawsuit is ever filed. Hill cited occasions where GE spent more in preservation than the money at stake in the litigation.

The proposed changes are still being reviewed by the Committee on Rules and Practice and Procedure of the Judicial Conference of the United States and will likely be a hot issue at LegalTech in New York next week. But do the Federal Rules really need to change regarding preservation? We feel strongly that we do not need to change the rules, and so do other several other prominent observers (see Opinions from the Field below).

The crux of the preservation problem does not lie in the inadequacy of the FRCP guidelines but rather in corporations being unprepared for litigation, particularly for the rigors of e-discovery. Fixing the major issues in data preservation will require true preparedness, with companies being proactive and forward-thinking in storing their data with an eye towards future e-discovery needs. Although rule changes might provide further impetus or incentive for corporations to move in a proactive direction, what is really needed is a fundamental attitude shift in the legal and corporate worldview to adhere to the rules as they are today.