Article on New E-Discovery Rules: Amendments to Rule 26(b)(2) are Meaningless

Professor Henry S. Noyes has posted his draft article, Good Cause is Bad Medicine for New E-Discovery Rules, on SSRN: http://ssrn.com/abstract=965922. The author welcomes questions, comments and criticisms. Here is the Abstract:

This Article takes a critical look at the e-discovery amendments to Rule 26(b)(2) that provide that electronically stored information that is “not reasonably accessible,” shall be discoverable only if the requesting party can establish good cause. I conclude that the e-discovery amendments to Rule 26(b)(2) are basically meaningless. They provide no new protection against the cost and burden of discovery. First, the courts' persistent reliance on the “liberal rules of discovery” mantra will not be overcome in the absence of express direction. Second, the good cause standard is so vague that it is meaningless and toothless. Third, the 2006 e-discovery amendments to Rule 26(b)(2) build on the structure and standards of three earlier rounds of discovery amendments. But experience has shown that these earlier amendments were ineffective in reducing the cost and burden of discovery - largely because courts have been unable to resist the siren song of the “liberal rules of discovery” mantra, particularly when faced with applying a meaningless, toothless good cause standard.

This serial, but ineffective, amendment of the discovery rules has created a great divide between (a) the stated intentions of the Rules Committee in amending the discovery rules, (b) the actual language of the amended discovery rules and (c) the experience of courts and practitioners in resolving discovery disputes under the discovery rules. The rules that establish the scope and limitations of discovery no longer mean what they say, they mean only what each judge thinks they ought to say or what the judge recalls that the rules used to say. To bridge this divide, I offer an interpretation of the existing discovery rules that gives meaning to the language of the rules, that limits the cost and burden of discovery and that is consistent with the Supreme Court's prior interpretation of the good cause standard.