The problem isn’t the rules, it’s that information – especially digital – in many companies is not managed with the same rigor and discipline as other “liquid” (read: “having street value”) assets. As a simple example, can you imagine a scenario where reimbursable expenses are “managed” by a company’s “cash custodians” with the same lack of controls as its ESI? Where simple protections – like knowing where it all is, and having individual accountability for its proper use – are left to chance or (worse) not understood by, or expected from, persons with access? We don’t expect the CFO to individually hold responsibility for every employees’ proper use of (and accounting for) the company’s expense funds, yet many companies act as if the GC and the CIO should (and can) accurately account for all ESI and the actions of custodians who handled it during a specific timeframe.

ESI is evidence. Just because there are mountains of it doesn’t mean its value in adjudicating a dispute is somehow diminished. If you buy the notion that the courts’ ability to discern “what is true” is a valid and proper function in a world where parties can (and often do) disagree, then the parties in whose control the evidence exists have a fundamental obligation to manage it effectively, and to be capable of accurately accounting for its use. Companies that “do” information management well, while still in the minority, have no need to fear eDiscovery: they’re too busy reaping other benefits – like freedom from “data breaches”, sound business-intelligence leverage and compliance with a myriad of regulatory requirements, to name a just a sample that should resonate with corporate officers like the GC.

Let’s not throw the baby out with the bathwater here. The value of FRCP’s role in quantifying the pervasive state of ESI “chaos” should not be lost in a misguided effort to “fix” the symptoms – clogged court calendars and bloated eDiscovery budgets – of litigants’ poor information-management practices. Ms. Mack is dead-on in her observation that simply rewriting the rules will “move the problem” from today’s meet-and-confer to the proposed preservation and early production steps. Do we really want another courthouse meltdown when the alternative – addressing the real root issue of information management while staying the course on FRCP – provides such huge upside potential, far beyond just the legal benefits?