Major revisions to the Federal Rules of Civil Procedure take effect Dec. 1, governing discovery of electronically stored information. The product of years of study and debate, the new rules will forever change how lawyers conduct litigation.
As a service to our readers, IMS ExpertServices offers this overview summarizing the six major components of the forthcoming rules.
1. Early attention to electronic discovery.
Rules 16 and 26 are amended to provide the court early notice of potential electronic discovery (EDD) issues. Specific changes include:
- The Rule 16(b) scheduling order must include "provisions for disclosure or discovery of electronically stored information" and "any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production."
- Rule 26(a) requires that the parties' initial disclosures include descriptions by category and location of all "electronically stored information," as opposed to the former rule's use of "data compilations."
- Rule 26(f) requires the parties, as part of their mandatory discovery conference, "to discuss any issues relating to preserving discoverable information," and, in particular: "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced."
The committee note says that the issues to be addressed during the conference will vary from case to case and will "depend on the nature and extent of the contemplated discovery and of the parties' information systems."
Other changes to Rule 26(f) require the parties to discuss:
- The form in which electronically stored information is to be produced.
- Any issues regarding preservation of discoverable information.
- Any issues relating to assertions of privilege or of protection as trial-preparation materials, including whether the parties can agree on procedures for asserting claims of privilege or protection after production.
2. Undue burden posed by EDD.
Rule 26(b)(2) authorizes a party to seek protection from EDD based on undue burden or cost. The new rule adds the following subparagraph B:
"A party need not provide discovery of electronically stored information from sources the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery."
The committee note adds: "[S]ome sources of electronically stored information can be accessed only with substantial burden and cost. In a particular case, these burdens and costs may make the information on such sources not reasonably accessible."
3. Privilege and work product protection.
The voluminous scope of electronic discovery creates a risk of inadvertent transmission of privileged and protected materials. Rule 26(b)(5) provides a procedure for addressing this. The amendments add a new subparagraph B:
"If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information after being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved."
4. Interrogatories and production requests.
The amendments make several changes to Rules 33 and 34:
- Rule 33(d) is amended to include electronically stored information as among the types of business records that may be produced in lieu of answers to interrogatories.
- Rule 34 is amended to allow for production of "documents, electronically stored information, and things."
- A party may request "to inspect, copy, test, or sample any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained – translated, if necessary, by the respondent into reasonably usable form."
- Rule 34(b) says: "The request may specify the form or forms in which electronically stored information is to be produced."
- Rule 34(b) permits the responding party to object to the requested form, explaining its grounds. If it objects, or if the request specified no form, the responding party must state the form it intends to use.
- Rule 34(b)(ii) says that if the request does not state a form for producing the information, the responding party must produce it "in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonable usable."
- Rule 34(b)(iii) says that a party need not produce the same electronically stored information in more than one form.
5. Safe harbor from sanctions.
Rule 37(f) provides a safe harbor for "routine, good-faith" loss of data. It says:
"Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."
For parties issuing subpoenas:
- Rule 45(a)(1)(C) now authorizes the subpoena to include electronically stored information.
- Rule 45(a)(1)(D) specifies that the subpoena "may specify the form or forms in which electronically stored information is to be produced."
When responding to a subpoena:
- Rule 45(d)(1)(B) provides that if the subpoena does not specify the form for production, the respondent "must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable."
- Rule 45(d)(1)(C) says that the respondent "need not produce the same electronically stored information in more than one form."
- Rule 45(d)(1)(D) says that the respondent need not provide information "from sources that the person identifies as not reasonably accessible because of undue burden or cost." Even if the respondent makes this showing, the court may still order discovery "if the requesting party shows good cause."
Rule 45(d)(2)(B) adds a procedure for addressing information that is claimed to be privileged or protected. It parallels the procedure under Rule 26(b)(5), discussed in section 3 above.