What is electronic discovery?
Discovery is the aspect of litigation in which opposing parties exchange information that may be relevant to any claims or defenses that have been asserted. This exchange of information typically occurs long before any trial. Historically, discovery was limited to paper documents. But, with the advent of computers and other electronic devices, discovery now involves the exchange of information held in electronic form; hence the term “e-discovery.”
Why are e-discovery rules necessary?
Electronic discovery has been governed by existing rules of civil procedure. However, those rules were not written with computer information in mind and federal judges have been forced, on a case-by-case basis, to figure out how to apply them to electronic information. The new electronic discovery rules specifically address the unique nature of electronic information and some of the issues that do not arise in the context of paper documents.
Who drafted the new rules?
The rules on electronic discovery were drafted by the Rules Committee of the Judicial Conference of the United States and were approved in April 2006 by the U.S. Supreme Court. They take effect Dec. 1.
Where are the new rules found?
The new rules on electronic discovery are part of the Federal Rules of Civil Procedure, which govern the way civil cases are handled in all federal courts nationwide. Several rules are impacted by the electronic discovery provisions, including Rules 16, 26, 34, and 37.
What do the new rules do?
First and foremost, the new Rule 26(f) requires parties to litigation to “meet and confer” early on to plan discovery and specifically talk about electronic discovery issues, including the steps that will be taken to preserve information and the format that will be used to produce information. What transpires will depend on the “nature and extent of the contemplated discovery and of the parties’ information systems.” Corporate attorneys are urged to “become familiar” with a company’s informational systems before this discussion takes place. Although judges do not participate in the initial discussions about electronic discovery, judges are encouraged under Rule 16(b) to consider such matters in initial scheduling orders.
Is all electronic information discoverable?
No. Under Rule 26(b)(2), parties do not need to provide electronic discovery from sources that are “not reasonably accessible” unless the party seeking the information can show good cause. Although there is no precise definition of what is “not reasonably accessible,” burden and cost are considered. Attorneys point out that, as technology changes, information that may “not [be] reasonably accessible” today may be reasonably accessible tomorrow. Considerable litigation is anticipated over what information is not subject to discovery because it is considered inaccessible.
RULES
Explanations follow about what each relevant e-discovery rule covers.
A Committee Note addresses the purpose of Rule 16, which covers the scheduling and planning of pre-trial conferences: “The amendment to Rule 16(b) is designed to
alert the court to the possible need to address the
handling of discovery of electronically stored
information early in the litigation if such discovery is
expected to occur.”
Rule 26(B) covers what should be disclosed initially during discovery: “[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.”
Rule 34 covers the scope of documents and electronically stored information subject to discovery: “Any party may serve on any other party a
request (1) to produce and permit the party making
the request, or someone acting on the requestor’s
behalf, 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, or to inspect, copy, test, or sample any
designated tangible things which constitute or contain
matters within the scope of Rule 26(b) and which are
in the possession, custody or control of the party upon
whom the request is served; or (2) to permit entry
upon designated land or other property in the
possession or control of the party upon whom the
request is served for the purpose of inspection and
measuring, surveying, photographing, testing, or
sampling the property or any designated object or
operation thereon, within the scope of Rule 26(b).
Rule 37 covers sanctions available for failure to comply with discovery requests: “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.”
Source
Amendments To The Federal Rules Of Civil Procedure (Effective Dec. 1, 2006)
What format does information have to be provided in?
Rule 34 states that information must be produced in “a form or forms in which [electronic information] is ordinarily maintained or in a form or forms that are reasonably usable.” The rule does not address issues such a metadata and when information might have to be produced in its native format. As with Rule 26(b)(2), litigation is anticipated over the manner in which electronic information must be produced when parties cannot come to a mutual agreement on format.
Does this mean you can’t ever destroy information?
No. Rule 37(f) provides a “safe harbor” for information that is lost or destroyed through the “routine, good-faith operation” of computer systems. Absent “exceptional circumstances,” federal judges are not supposed to punish parties that destroy electronic information pursuant to legitimate information-management policies. However, companies still have to implement litigation “holds” – making sure information is not destroyed when a lawsuit has been filed or is reasonably anticipated.
What if privileged information is accidentally given to the opposing party?
Under Rule 26(b)(5)(b), a party that inadvertently provides privileged information to the other side can notify the other side, which is then required to return, sequester, or destroy the information. If there is a dispute as to whether the information produced is subject to a privilege, the information would have to be sealed until a judge can make a ruling.
What kind of sanctions may be imposed for violating the e-discovery rules?
The potential sanctions that apply for violating of traditional discovery rules apply in the context of electronic discovery. Judges can impose monetary penalties, exclude evidence, allow jurors to infer that information that cannot be produced would have been harmful to the party that lost it, and, in extreme situations, enter a default judgment against the party that violates the rules.
Do the e-discovery rules apply to state court actions?
No. The new rules only apply in federal court, although they are expected to influence how state courts handle e-discovery issues in the future. A handful of states have adopted their own rules on electronic discovery. In other states, electronic discovery still is encompassed by rules of discovery written before electronic information became prevalent.
What resources are out there to help deal with the electronic discovery rules?
The American Bar Association lists a number of resources for dealing with electronic discovery in its Legal Technology Resource Center, including books and vendors that provide consulting and other services. (For a link to the ABA’s resource page, see the above box in the right-hand corner.) Many state and local bar associations have also scheduled informational seminars devoted to the new e-discovery rules. Unfortunately, there is no point-person in the federal court system designated to answer questions about electronic discovery issues. The court system prefers to let the rules, as well as the commentary and any case law that develops under the rules, do the talking.
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