E-Discovery Help May Be on the Way ... Sort Of: Civil Rules Advisory Committee Proposal: The Amendments Address Several Issues, Including Inaccessible Documents, Privileged Documents, Third-Party Subpoenas and a Sanctions Safe Harbor

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RULE 1 of the Federal Rules of Civil Procedure contains the noble goal that the civil rules should foster the "just, speedy, and inexpensive" determination of every action. When Rule 1 was drafted, personal computers were the vision of sci-fi flick directors. E-discovery was absent from the lexicon of litigators. Today, personal computers are ubiquitous; metadata are metastasizing; and in a growing number of cases, e-discovery is eviscerating Rule 1. (1) In response, the Civil Rules Advisory Committee of the Committee on Rules of Practice and Procedure of the U.S. Judicial Conference has proposed changes to a number of the civil procedure discovery rules. The proposals have been promulgated for public comment until February 15, 2005. Any changes made to the civil rules would not go into effect until December 2006 at the earliest. (2) The changes are modestly ameliorative, will not eliminate cost-shifting debates, and will not provide sanctions protection to litigants who do not develop rigorous electronic document preservation programs.

THE PLACE TO START

In recognition of the importance of early attention to e-discovery issues, changes are proposed in Rules 26(f) and 16, the latter governing scheduling orders. Rule 26(f) requires parties to confer to consider the nature and basis of their claims and defenses, consider settlement, make or arrange for disclosures required by Rule 26(a)(1), and develop a discovery plan. The proposed amendment would add one more item to the litany of subjects to be considered during this conference: "to discuss any issues relating to preserving discoverable information."

Parties should recognize that the duty to preserve may arise long before the Rule 26(f) conference, as is illustrated by Zubulake v. UBS Warburg LLC. (3) It also should be obvious that counsel must comprehend their clients' electronic information systems beforehand to participate meaningfully in the Rule 26(f) conference.

If the amendments are adopted, the discovery plan contemplated by Rule 26(f) also will contain new paragraphs (3) and (4), which provide that the parties will state their views for the district court on e-discovery and privilege issues.

New paragraph (3) would include:

(3) any issues relating to disclosure or discovery of electronically stored information, (4) including the form in which it should be produced.

The form of production can be expected to be an issue as software and hardware change. For instance, in Byers v. Illinois State Police, (5) the producing party no longer had software to read backup tapes.

New paragraph (4) would provide:

(4) whether, on agreement of the parties, the court should enter an order protecting the right to assert privilege after production of privileged information.

In Rowe Entertainment Inc. v. William Morris Agency Inc., (6) the magistrate judge proposed a "clawback" so that the privilege could be asserted by the responding party after production and review of electronic documents by the requesting party.

Proceeding sequentially to the Rule 16 scheduling order, the proposed amendments would add new paragraphs (b)(5) and (b)(6) that would permit the order to include: "(5) provisions for disclosure or discovery of electronically stored information"; and "(6) adoption of the parties' agreement for protection against waiving privilege."

Lawyers that are not tackling the issue of electronic discovery when suit is reasonably anticipated run the risk of meaningful and potentially costly discovery conflicts when litigation is filed. Lawyers who have properly addressed e-discovery concerns immediately after filing, and pre-filing where necessary, will find these proposed changes welcome and advantageous.

ACCESSIBILITY AND COST SHIFTING

Cost shifting is not specifically addressed by the proposed rules, but Rule 26(b)(2), the focal point of the cost-shifting case law, would incorporates the "accessibility" concept from Zubulake I in establishing guidance for the district courts]

The district court in that case held that data that are (1) "online" or archived on current computer systems, such as hard drives; (2) "near-line," such as that stored on optical disks or magnetic tape stored in a robotic storage library from which records can be retrieved in two minutes or less, or (3) "off-line" but in storage or archives, such as removable optical disk or magnetic tape media, are readily accessible using standard search engines because the data are retained in machine readable format. …