As the volume of electronic data continues to increase (approximately 60 billion e-mail messages are sent each day), the cost of discovery in civil cases has steadily increased as well. In recognition of this problem, several changes to the Federal Rules of Civil Procedure will take effect on December 1, 2006. Changes will specifically be made to Rules 16, 26, 33, 34/45, and 37. This alert highlights these changes.
Definition of “Discoverable” (Rules 26, 33, 34, and 45)
Litigants will specifically be required to produce “electronically stored information” in response to document requests, interrogatories, and/or subpoenas. Parties will also be required to include as part of their initial disclosures:
a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.
Form of Production (Rules 26, 34, and 45)
If a request or subpoena does not specify the form for production of “electronically stored information” (and absent other agreement by the parties), the responding party will be required to produce the information in (1) the form in which it ordinarily maintains the information (e.g., “native file format”), or (2) a form or forms that are reasonably usable (e.g., searchable .pdf files with associated meta data).
If a document request or subpoena does specify the form for producing “electronically stored” information, the responding party may object to or agree with the request. If the responding party objects, the parties must confer before a motion to compel is filed. Upon a motion showing good cause for the specific form, the court may order a specific form of production, but is not limited to the form originally requested.
Inaccessible Data (Rule 26(b)(2)(B))
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible (e.g. backup tapes) because of undue burden or cost. On a motion to compel discovery or a motion for a protective order, the burden is on the responding party to show that the information is not reasonably accessible because of undue burden or cost. Even if that showing is made, however, the court may nonetheless order discovery from that party if the requesting party shows “good cause.”
The Federal Rules Advisory Committee Notes on this change identify several factors to consider when determining whether the benefit of the requested discovery outweighs the burden to the production party:
- Specificity of discovery request;
- Quantity of the information available from other and more easily accessed sources;
- Failure to produce relevant information that seems likely to have existed
but is no longer available from more easily accessed sources;
- The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
- Predictions as to the importance and usefulness of the further information;
- The importance of the issues at stake in the litigation; and
- The parties’ resources
Inadvertent Production (Rules 26(b)(5) and 45(d)(2)(B))
When a party produces data without intending to waive a claim of privilege, it may notify the receiving party of the claim of privilege. That notice will have to be in writing (unless circumstances preclude that form of communication), be as specific as possible, and must state the basis for the claim of privilege. After being so notified, the receiving party must return, sequester, or destroy all copies of the specified information. The party may not use or disclose any of the information pending resolution of the privilege claim. The producing party must then preserve the information pending a court ruling on whether privilege was properly asserted or whether it was waived.
The changes to this Rule do not address the substantive questions of whether privilege or work product is waived or forfeited. Instead, the Advisory Committee notes indicate that the amendment is merely intended to set up a procedure to allow the responding party to assert a claim of privilege or work product protection after production.
The new rules, however, do authorize courts to enter orders enforcing so called “quick peek” and “claw back” agreements between parties that may alter the substantive law of privilege waiver.
Sanctions—“Safe Harbor” Provision (Rule 37(f))
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information deleted or lost as a result of the routine, good-faith operation of the party’s electronic information systems (e.g. data retention policies). The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness.
“Meet and Confer” Amendment Rules 16(b) and 26(f))
The parties must discuss e-discovery issues during their discovery planning conference. Specifically, the discussion must include:
- Preservation of evidence;
- Issues related to the disclosure of electronically stored information;
- Consideration of inadvertent production and potential waiver of privilege; and
- Form of production.
The parties may also include as part of their Rule 26(f) Report, agreements regarding the right to assert privilege after the production of privileged information, or other issues relating to the disclosure and/or discovery of electronically stored information, such as the form or forms in which such information should be produced.