Right now, we are at the Discovery Subcommittee level in our deliberations about electronic discovery. The charge of the Subcommittee is to study the issue, gather facts, and perhaps propose rules amendments for the Civil Rules Advisory Committee to discuss. Here is what the Subcommittee, with the assistance of the Federal Judicial Center, is doing.

First, the Subcommittee has held two "mini-conference," one-day events to hear from practitioners, judges, and technical experts about the issue in broad terms. These meetings have been held in San Francisco in New York. They were not hearing, they didn't debate any particular proposals, they were informal fact-finding sessions.

This summer the FJC conducted a survey of 400 United States Magistrate Judges on electronic discovery. The idea was not to generate scientifically valid statistics, but again to informally gather impressions from the judges who are most likely to be in the trenches, listening to the bullets whiz past.

Out of that survey, we collected about 20 cases which might be candidates for in-depth study, cases which illustrate the problems common to electronic discovery and in which rules or judicial orders played a role. Over the next few weeks, we plan to narrow this to about ten cases in which we will conduct in depth study of the documents and interviews with the participants.

We may also be doing further empirical research, which hasn't been determined. Among the ideas are a study of the effect of the new Texas rules, which are found in your materials, or a study of districts which have early meet-and-confer requirements dealing specifically with electronic discovery.