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Proposed changes to federal electronic discovery rules
trouble for injured victims and consumers?

New proposals on electronic documents splits defense and plaintiffs bar

(5/17/2004) -- Lawyers Weekly USA has reported that a subcommittee of the Federal Civil Rules Advisory Committee is considering proposed changes to the Federal Rules of Civil Procedure to address e-discovery - changes that  defense lawyers say are needed to protect businesses from discovery abuses. According to the article in Lawyers Weekly USA, plaintiffs' attorneys are concerned that the suggested changes are driven by defense efforts to limit access to, and even permit destruction of, evidence vital to their clients' cases.

The article reports that currently, the subcommittee is preparing draft proposals to present to the Rules Standing Committee for consideration in June. According to the article, the Standing Committee is expected to publish the proposals, and the bench, bar, publishers and general public will then have six months to comment through letters or public hearings. If the rules are then approved by the Judicial Conference, the U.S. Supreme Court and Congress, they will become effective on December 1, 2006.

Are Changes Necessary? The article quotes Atlanta plaintiffs' attorney and ATLA member Andrew Scherffius, a member of the committee working on the changes, who said the fact that "nothing ever goes away" with electronic documents distinguishes electronic evidence. According to Scherffius, the enormous volume and the resulting problems of storage and retrieval require that the rules address electronic evidence differently, the article reports.

However, there is far from universal consensus that such changes are needed, according to the article. "We've got the rules," said ATLA member Leonard Davis of New Orleans, who represents defendants as well as plaintiffs. "Judges need to look at them, take advantage of them and force the parties to work through the problem as always."

The article also quotes Richard Seymour, a plaintiffs' attorney and ATLA member in Washington, D.C., who reads the proposed amendment to Rule 37 as an attempt to persuade the federal courts to "bless" the destruction of evidence without subjecting the defendant to an adverse inference. But according to Seymour, the idea of a "sanctions tort" is "ingenious" but not a reality, the article reports

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