After several years of development, the Massachusetts Supreme Judicial Court has adopted sweeping changes to the Massachusetts Rules of Civil Procedure that will bring the state closer in line with the Federal Rules on E-Discovery, and will lead to increased attention to electronic discovery issues by the courts and the parties much earlier in litigation. From the institution of earlier e-discovery planning by the parties, to the consideration of cost-allocation, to providing a more clear definition of what types of electronic information will be deemed “inaccessible,” the newly adopted rules, which take effect on January 1, 2014, will require practitioners to become much more facile with e-discovery concepts and practices throughout the case. A comparison view of the rules is available here.
- Cost-Allocation: The new rules formalize the power of Massachusetts courts to allocate electronic discovery costs among the parties and require the parties to address cost-allocation very early in the discovery process. Additionally, the court can now expressly limit the discovery of even accessible electronic data if material sought can be obtained from other less burdensome or expensive sources, the material is cumulative, the information can be obtained through other discovery, or if the burden outweighs the benefit of the materials.
- E-Discovery Planning and Conferences: The amended rules focus on encouraging cooperation among the parties on electronic discovery issues as early as possible in the case. Most notably, it establishes an e-discovery conference: at any time within the first 90 days after the responsive pleading, a party may require the opposing party to attend, within 30 days’ notice, an e-discovery conference, at which the parties are obligated to discuss preservation; form of production; metadata; timeline for production; privilege claims; confidentiality claims; cost-allocation; or any other e-discovery issue. Within two weeks of the conference, the parties must then file their joint plan and a statement of areas of disagreement with the court. The court then in turn can either hold a conference or sua sponte issue an electronic discovery order that will address the issues raised by the parties.
The revised rules also add three new topics to the Rule 16 Conference agenda: (5) “The timing and extent of discovery;” (6) “The preservation and discovery of electronically stored information;” and (7) “Agreements or proceedings for asserting claims of privilege or of protection as trial preparation material after information is produced.”
- Defining “Inaccessible Information”: By adopting the federal standard for “inaccessible information,” Massachusetts harmonizes its law with Fed. R. Civ. P. 26, and clarifies a standard that had previously been addressed only through case law in Massachusetts. The court retains the power to order inaccessible information produced if the requesting party can demonstrate that the likely benefit of its receipt outweighs the likely burden of its production, but may allocate costs to the requesting party.
- Inadvertent Production: Because of the higher risk of inadvertent production in large-volume e-discovery cases, the new rules provide for the use of a “clawback” procedure along the lines of that specified in the Fed. R. Civ. P. 26 and Fed. R. Evid. 502, so that accidental disclosures will not be deemed waivers of privilege. The inquiry as to waiver will focus on whether the producing party took reasonable steps to prevent disclosure and prompt reasonable steps to rectify the error once discovered. While the rules call for the utilization of the Impoundment Procedures, they also specifically permit the parties to adopt their own procedures for the treatment of such information.
- Inadvertent Destruction/Spoliation: The Massachusetts rules will now also establish a safe-harbor in order to address a major concern about preservation obligations by largely removing the threat of sanctions in the case of information lost as a result of “routine, good-faith operation of an electronic information system.”
- Obligations of Non-Parties: The revised Mass. R. Civ. P. 45 now requires that a “party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” The rules further clarify the rights of non-parties to seek protective orders on inaccessibility grounds and the ability to designate materials confidential pursuant to the operative protective order between the parties, clarifies that non-parties do not have obligations to produce privilege logs and provides non-parties the same “clawback” protections afforded to parties.
Under these rule changes, parties will need to understand the scope, costs, limitations and forms of their electronic materials very early in the case and will need to quickly identify any disagreements as to limitations or timelines at the outset of litigation. This impulse for early case assessment is designed to head off the kinds of inefficiencies and waste created by late-filed discovery motions; the coming year will test whether the new rules’ reliance on negotiation by counsel and the prospect of E-Discovery orders will achieve the desired result of a more streamlined and cost-effective electronic discovery system for Massachusetts.
Obligations of Non-Parties: The revised Mass. R. Civ. P. 45 now requires that a “party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” The rules further clarify the rights of non-parties to seek protective orders on inaccessibility grounds and the ability to designate materials confidential pursuant to the operative protective order between the parties, clarifies that non-parties do not have obligations to produce privilege logs and provides non-parties the same “clawback” protections afforded to parties.
Under these rule changes, parties will need to understand the scope, costs, limitations and forms of their electronic materials very early in the case and will need to quickly identify any disagreements as to limitations or timelines at the outset of litigation. This impulse for early case assessment is designed to head off the kinds of inefficiencies and waste created by late-filed discovery motions; the coming year will test whether the new rules’ reliance on negotiation by counsel and the prospect of E-Discovery orders will achieve the desired result of a more streamlined and cost-effective electronic discovery system for Massachusetts.