The law, as a means of administering dispute resolution andcriminal accountability, must be able to adapt to revolutions of industry ortechnology.
We are currently in thebeginning years of a technological revolution that will only grow and continueto change the way humans live their lives.
Computer and internet use have changed the way that people and businessthink and act.
In today's judicialsystem, a case (either civil or criminal) is often decided by the evidenceproduced and discovered prior to trial.
As computers have become the integral components of any successfulbusiness operation, the records on those computers have become more difficultto discover.
Not only because of thedifficulty of gaining access to an adversary's computer records, but alsobecause many seasoned attorneys do not even know what to look for when they dogain access.
Adding to the confusion isa lack of guiding procedural and case law.
New methods of discovery have hampered older, traditional attorneys whocarry with them the knowledge and experience from the days of paper andpen.
The old rules are obsolete, and intoday's world if you can not keep up with the technology and developments in the law then you will be left as ineffectual as the paper and pen you holdin your hand.
In response to the increased demands for structure inE-discovery, the ABAhas proposed new Amendments to Civil Discovery Standards relating to the use ofE-discovery.
In part, these proposedamendments are aimed at providing guidance for evidence retention, destructionand production.
Electronic evidence presents many issues not previouslyexperienced with more traditional forms of evidence.
Certain forms of electronic evidence may bemisleading and prejudicial to one party or the other, because one piece ofevidence may only represent an initial draft of a document, containinginformation leading to the inference of liability.
From a simple printout of electronicevidence, it can be extremely difficult to ascertain whether that evidence is thefirst or final draft, and whether that evidence has any impact on thedispute.
In many ways electronicevidence provides for easier access because there is no need to search throughcumbersome boxes of paper, but conducting the actual discovery process mayexponentially increase the costs to both the producing and discovering parties.
It takes substantial time to track downtrails of information throughout a company's network.
From a plaintiff's point of view, electronicevidence is difficult to destroy, as it takes an extremely complicated andsophisticated process to completely erase an electronic signature and metadataassociated with the files.
Asdemonstrated, electronic evidence may at times be more difficult to find, butconversely, it is also harder to destroy.
This juxtaposition of qualities can make a process that appears moreconcise in theory, to actually become more cumbersome and costly when actuallyput into practice.
Inresponse to these growing concerns, as part of its proposed amendments, the ABA has focused onE-discovery issues ranging from pre-trial conferences and electronically storedinformation to a party's failure to comply with discovery or to cooperate.
Unnerving to many plaintiff'sattorneys is proposed Amendment 37(f), which provides that:

"Unless acourt order requiring preservation of electronically stored information isviolated, the court may not impose sanctions under these rules on a party whensuch information is lost because of the routine operations of its electronicinformation system if the party took reasonable steps to preserve discoverableinformation.
"

Thisis perhaps the most troublesome (at least for plaintiff's attorneys), becauseit effectively creates a safe-harbor for the destruction of electronicevidence.
Sanctions would be barred wheninformation is destroyed as a result of routine destruction practices.
The rule mentions nothing about what areasonable destruction practice is or whether a party must freeze thosepractices once it learns that there is a potential for litigation.
Otherimportant proposed amendments include:

• Rule33(d).
  Under the traditional Rule 33, a party responding to aninterrogatory could produce business records as a substitute for explicitlyresponding to the interrogatory.
  Under Amended Rule 33(d), the responding partywill be permitted to produce electronic dates and records when responding tointerrogatories provided that the requesting party can easily identify andlocate the sought after information.
  
• Rule34(b).
  The new proposed amendments do not require an attorney to choose aparticular evidentiary format when responding to discovery requests, but itsmere mention suggests a policy toward favoring electronic evidence.
  When a requested production format is notspecified, the responding party should produce evidence in the manner in whichthat information is ordinarily maintained or, alternatively, in a form that isreasonably easy to access and use.
  
• Rule26(b)(5)(B).
  This amendmentaddresses the inadvertent production of privileged or protected information.
  This rule will allow a party who unintentionally discloses the privilegedinformation to retrieve it from the accidental receiving party unless thatparty can prove that they have a right to that information.
  
• Rule 45.
  This amendment to Rule 45 would essentially allow parties to subpoenaelectronically stored information pursuant to any of the other adoptedamendments contained in the Rules.
  

These are not the only proposed changes, but this brief summaryof the proposed amendments is a good demonstration of the increasing preferencefor electronic discovery.
The legalworld is changing and those attorneys who are unable to keep up with thechanges will be left in the dust.
Thismove by the ABA should serve as a sign tothose attorneys frightened by technology and advancements in the law.
Electronic discovery is here to stay, unlikethose who refuse to welcome the changes to the judicial discovery process.