In the last decade electronically stored information, or ESI, has become central to the civil discovery process. Yet the Federal Rules of Civil Procedure, which were drafted to serve primarily the non-digital world, are incapable of addressing the often overwhelming amount of electronic information that can be produced in litigation.
So confounding are the current rules and related court opinions that periodicals such as “E-Discovery Advisor” have been created in order to keep interested parties apprised of the developing law in this area. Not surprisingly, the bench and bar have long been clamoring for clarity.
Fortunately, having consulted various interest groups, the Judicial Conference’s Committee on Rules of Practice and Procedure has proposed much needed amendments to the Federal Rules of Civil Procedure as they relate to electronic discovery. These rules will become effective on Dec. 1, 2006, subject to the approval of the Judicial Conference, the Supreme Court, and Congress.
While that may seem like a long way off, businesses would be wise to review their electronic document management policies in light of the amendments.
Here is a synopsis of the current rules and the proposed changes:
Early attention to e-discovery issues
Rules 34(a), 26(f) and 16(b). Generally, the proposed rule changes demand earlier attention to electronic discovery issues. Under the new rules, ESI must be produced as part of any required initial disclosures. As the definition of ESI is distinct from that of physical “documents” under Rule 34(a), parties must specifically request ESI in motions for production.
Under current rules, after initial disclosure, the court can order a Rule 26(f) conference that requires the parties to meet and discuss discovery. The amendments would demand that any issues related to the production of ESI be discussed at the 26(f) conference. Issues to be addressed could include the form of ESI production (e.g. hard drive, disks, etc.), the preservation of documents, and protections for work-product or privileged information inadvertently produced.
Any agreements reached regarding electronic discovery would then be included in the Rule 16(b) scheduling conference and subsequent order.
Two-tiered discovery
Rule 26(b)(2)(B). Generally, Rule 26 requires production of material that is reasonably accessible (meaning that the production would not be overly burdensome or expensive). Traditional discovery rules for physical documents have established a two-tiered system. Tier one is managed by the parties and provides for the production of all documents relevant to the claims or defenses of the parties. Tier two includes information that can only be procured though a court order.
The proposed changes would create a similar two-tiered approach and would clarify when a responding party may properly object to requests for the production of ESI.
Under the new rules, material that does not create an undue burden on a party is produced first. Then, following a successful motion to compel or a protective order, the responding party would have to produce material it deemed not readily accessible. If it wishes to resist, the responding party has the burden of proving that production of the sources in question would cause undue burden and expense. If the responding party carries the burden, it will not have to produce the material. Even then, however, a court could order production under a showing of good cause.
Inadvertent production of work product or privileged information
Rule 26(b)(5). Proposed Rule 26(b)(5) provides that if a party has produced such material, it must notify the receiving party and set forth in writing the basis for the belief that the information is privileged.
After receiving notification, the receiving party must return, sequester or destroy the information and may not disclose the information to third parties until the claim is resolved. It may also submit the issue to the court along with the producing party’s request to obtain a prompt ruling on whether the information is protected and whether any privilege has been waived.
Safe harbor from sanctions
Rule 37(f). Unfortunately, because of its nature, ESI can literally disappear with the crash of a hard drive. Rule 37(f) has been completely rewritten by the Judicial Conference committee to address such losses.
The new rule creates a “safe-harbor” for parties who experience problems outside of their control, such as a hard drive crash. Absent exceptional circumstances, the court may not impose sanctions on a party that fails to produce ESI because of a mishap resulting from “routine, good-faith operation of an electronic information system.” However, the rule does allow for sanctions of those who willfully destroy ESI or evade production.
These proposed new rules may still be modified as efforts to have them adopted move forward. Moreover, once approved they will likely need to be amended again as technology evolves. For the moment, though, the proposed changes will be beneficial to litigants, will increase judicial economy, and will hopefully help clarify for attorneys what has been a confusing area of the law.
The author wishes to thank his law clerk Andrew Dale for his assistance in writing this article.