DRAFT
FOR DISCUSSION ONLY
UNIFORM DISCOVERY
OF
ELECTRONIC RECORDS ACT
_______________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
WITH
PREFATORY AND REPORTER’S NOTES
Copyright © 2006
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions set forth in
this draft, including the proposed statutory language and any comments or
reporter’s notes, have not been passed upon by the National Conference of
Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of
the Conference and its Commissioners and the Drafting Committee and its Members
and Reporter. Proposed statutory
language may not be used to ascertain the intent or meaning of any promulgated
final statutory proposal.
DRAFTING
COMMITTEE ON UNIFORM DISCOVERY OF
ELECTRONIC RECORDS ACT
The
Committee appointed by and representing the National Conference of
Commissioners on Uniform State Laws in drafting this Act consists of the
following individuals:
REX
ALBERT D. BRAULT,
PAUL W. CHAIKEN,
PAUL CONDINO, S0799 House Office Bldg.,
CULLEN M. GODFREY,
THEODORE C. KRAMER,
STEPHEN M. ORLOFSKY,
ANITA RAMASASTRY, University of Washington School of Law, William H.
Gates Hall,
Box 353020, Seattle, WA
98195-3020
MARK H. RAMSEY,
JAMES J. WHITE,
JOHN L. CARROLL,
EX OFFICIO
HOWARD J. SWIBEL, 120
MICHAEL B. GETTY,
AMERICAN BAR ASSOCIATION ADVISORS
JEFFREY ALLEN,
SCOTT F. PARTRIDGE,
GEORGE LYNN PAUL,
EXECUTIVE DIRECTOR
WILLIAM H. HENNING, University of Alabama School of Law, Box 870382,
Tuscaloosa, AL 35487-0382, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE
312/915-0195
UNIFORM DISCOVERY OF ELECTRONIC RECORDS ACT
TABLE
OF CONTENTS
SECTION
4. DISCOVERY OF ELECTRONICALLY-STORED
INFORMATION
SECTION
5. FORM OF PRODUCTION OF
ELECTRONICALLY-STORED
INFORMATION
SECTION
6. CONFERENCE CONCERNING DISCOVERY OF
ELECTRONICALLY-STORED INFORMATION; REPORT TO THE COURT
SECTION
7. SCOPE OF DISCOVERY OF
ELECTRONICALLY-STORED
INFORMATION
SECTION
8. CLAIMS OF PRIVILEGE OR PROTECTION
AFTER PRODUCTION OF ELECTRONICALLY-STORED INFORMATION
SECTION
9. ORDER OF COURT RELATING TO DISCOVERY
OF
ELECTRONICALLY- STORED INFORMATION
SECTION
10. LIMITATION ON SANCTIONS
SECTION
11. SUBPOENA FOR PRODUCTION OF
ELECTRONICALLY-STORED INFORMATION
UNIFORM
DISCOVERY OF ELECTRONIC RECORDS ACT
With very few
exceptions, when the state rules and statutes concerning discovery in civil
cases were promulgated and adopted, information was contained in documents in
paper form. Those documents were kept in
file folders, filing cabinets, and in boxes placed in warehouses. When a person or business or governmental
entity decided a document was no longer needed and could be destroyed, the
document was burned or shredded and that was the end of the matter. There was rarely an argument about sifting
through the ashes or shredded material to reconstruct a memo which had been
sent.
In today’s business
and governmental world, paper is a thing long past. By some estimates, 93 percent or more of
corporate information was being stored in some sort of digital or electronic
format.[1] This difference in storage medium for
information creates enormous problems for a discovery process created when
there was only paper. Principal among
differences is the sheer volume of information in electronic form, the
virtually unlimited places where that information may appear, and the dynamic
nature of electronic information. These
differences are well documented in the lengthy quote which follows from the
report of the Advisory Committee on the Federal Rules of Civil Procedure (Civil
Rules Advisory Committee). This report
recommended adoption of new Federal Rules to accommodate the differences.
The Manual
for Complex Litigation (4th) illustrates the problems that can
arise with electronically stored information.
The
sheer volume of such data, when compared with conventional paper documentation,
can be staggering. A floppy disk, with 1.44 megabytes is the equivalent of 720
typewritten pages of plain text. A CD-ROM with 650 megabytes, can hold up to
325,000 written pages. One gigabyte is the equivalent of 500,000 written pages.
Large corporate computer networks create backup data measured in terabytes, or
1,000,000 megabytes, each represents the equivalent of 500 billion typewritten
pages of plain text.
Electronically stored information may exist
in dynamic databases that do not correspond to hard copy materials. Electronic
information, unlike words on paper, is dynamic. The ordinary operation of
computers - including the simple act of turning a computer on and off or
accessing a particular file - can alter or destroy electronically stored
information, and computer systems automatically discard or overwrite as part of
their routine operation. Computers often automatically create information
without the operator’s direction or awareness, a feature with no direct
counterpart in hard copy materials. Electronically stored information may be
“deleted” yet continue to exist, but in forms difficult to locate, retrieve or
search. Electronic data, unlike paper, may be incomprehensible when separated
from the system that created it. The distinctive features of electronic
discovery often increase the expense and burden of discovery.[2]
The report from which
this quote is taken is the work product of a six-year effort by the Civil Rules
Advisory Committee. The effort began in
2000, when that Committee conducted a series of national conferences to
determine whether the Federal Rules should be amended to accommodate the
differences between information contained in paper documents and
electronically-stored information. The
Civil Rules Advisory Committee ultimately promulgated a package of rules
amendments for public comment in August of 2004. That package contained amendments to (1)
provide early attention to electronic discovery issues, (2) provide better
management of discovery into electronically stored information, (3) set out a
procedure for assertions of privilege after production, (4) clarify the
application of the rules relating to interrogatories and requests for production
of documents to electronically stored-information, and (5) clarify the
application of the sanctions rules to electronically-stored information.
The proposed Federal
Rules amendments generated tremendous interest from the bench and bar. The Committee held public hearings on the
proposed amendments in late 2004 and early 2005. Seventy-four witnesses testified, many of
whom also submitted written comments. An
additional 180 other written comments were submitted. The Committee used the information gained
during the public comment period to further revise the rules. The revised rules package will become
effective on
The NCCUSL Drafting
Committee held its initial meeting on
Although the draft
currently takes the form of a proposed statute entitled “Uniform Discovery of
Electronic Records Act”, the Drafting Committee has recommended to the NCCUSL
Executive Committee that the draft ultimately take the form of proposed
judicial rules and be re-titled “Uniform Rules Relating to the Discovery of
Electronically-Stored Information”.
UNIFORM DISCOVERY OF ELECTRONIC RECORDS ACT
SECTION 1. SHORT
TITLE. This [act] may be cited as
the Uniform Discovery of Electronic Records Act.
SECTION 2.
DEFINITIONS. In this [act]:
(1) “Discovery” means the
process of providing information in a civil proceeding in the courts of this
State by a party or person pursuant to [insert reference to State Rules of
Civil Procedure] or this [act].
(2) “Electronic” means
relating to technology having electrical, digital, magnetic, wireless, optical,
electromagnetic, or similar capabilities.
(3) “Electronically-stored
information” means information that is stored in an electronic medium and is
retrievable in usable form and includes data, sound recordings, and images.
(4) “Person” means an
individual, corporation, business trust, estate, trust, partnership, limited
liability company, association, joint venture, government, governmental
subdivision, agency, or instrumentality; public corporation; or any other legal
or commercial entity.
Reporter’s Notes
The definitions of “electronic” and “electronically-stored information”
are intended to encompass future developments in computer technology. The rules are intended to be broad enough to
cover all types of computer-based information, and flexible enough to encompass
future changes and development. The term
“electronically-stored information” is derived from the Federal Civil Rule
Amendments and, like its NCCUSL equivalent term “record”, is intended to be
expansive and to encompass any type of information that is stored
electronically.
(a) This act
applies to civil proceedings in which electronically-stored information is
reasonably likely to be discoverable.
(b) This act
supplements the [insert reference to state rules of civil procedure].
Reporter’s Notes
These
rules are intended to make the discovery of information in electronic form more
efficient and less costly. They are not
intended to apply to cases where discovery of electronically-stored information
is not likely. Accordingly, these rules
may be made applicable to a particular case by agreement of the parties or by
order of the court either sua sponte
or on motion of a party.
SECTION 4.
DISCOVERY OF ELECTRONICALLY-STORED INFORMATION.
(a) A party in a civil proceeding may serve on
any other party in the proceeding a request for production of
electronically-stored information and for permission of the party making the
request, or someone acting on the requestor’s behalf, to inspect, copy, test or
sample any of the requested electronically-stored information. The request for
production may ask the party on whom the request is served to convert the
information into a readily usable form.
(b) A party on
whom a request for production is served shall serve on the party making the
request a written response not later than [30] days
after the service of the request. A
shorter or longer time may be ordered by the court or, in the absence of such
an order, may be agreed to by the parties in writing.
(c) A response to
a request for production shall state, with respect to each item or category in
the request, that inspection, copying, testing or sampling of
electronically-stored information will be permitted as requested unless the
request is objected to, in which event, the objecting
party shall state the reasons for the objection.
Reporter’s Notes
This
rule is intended to confirm that the discovery of information in electronic
form stands on an equal footing with discovery of paper documents.
A
common example of “electronically-stored information” is e-mail. Consequently, e-mail that is relevant, or
reasonably likely to lead to the discovery of admissible evidence, would be
discoverable under this rule.
SECTION 5.
(a) A party
requesting production of electronically-stored information may specify a form
in which electronically-stored information is to be produced.
(b) If a party
responding to a request for production objects to a form for producing
electronically-stored information, or if no form was specified in the request,
the responding party shall state the form in which it intends to produce the
electronically-stored information.
(c) Unless the
parties otherwise agree, or the court otherwise orders:
(1) if a request for production does not specify
a form for producing electronically-stored information, the responding party
shall produce the information in a form in which it is ordinarily maintained or
in a form that is reasonably usable; and
(2) a party need not produce the same
electronically-stored information in more than one form.
Reporter’s Notes
The form of production is more important to the exchange of
electronically-stored information than it is to the exchange of paper
documents. This rule concerning the form
of production is designed to make the discovery of electronically-stored
information more efficient and cost-effective.
The rule recognizes that different forms of production may be
appropriate for different types of electronically-stored information. The rule allows the requesting party to
specify the form, allows the responding party to object, and creates a default
position for production if no form is specified.
SECTION 6.
CONFERENCE CONCERNING DISCOVERY OF ELECTRONICALLY-STORED INFORMATION;
REPORT TO THE COURT.
(a) Not later than [21] days after the first
defendant has filed an appearance in a civil proceeding, the parties shall hold
a conference concerning whether electronically-stored information is reasonably
likely to be discoverable in the proceeding and, if so, develop a proposed plan
for discovery that addresses:
(1) preservation of the information;
(2) the form in which the information will be
produced;
(3) the method for asserting or preserving claims
of privilege or protection as trial-preparation materials, including whether
claims may be asserted after production; and
(4) allocation among the
parties of the cost of production.
(b) Each attorney of
record and each unrepresented party that has appeared in a civil proceeding is
jointly responsible for arranging the conference required under subsection (a),
for attempting in good faith to agree on a proposed plan, and for submitting to
the court a written report not later than [14] days after the conference which summarizes the plan and specifies the issues
about which the parties were unable to agree.
Reporter’s Notes
There
is almost universal agreement that early attention to issues relating to the
discovery of electronically-stored information makes the discovery process more
effective and cost-efficient. This rule
requires the parties to discuss issues relating to the discovery of
electronically-stored information at the outset of the case. Some local Federal Rules require counsel, in
advance of this sort of a conference, to review the potential production of
information in electronic form with the client in order to understand how
information is stored and how it can be retrieved. While this rule does not impose such an
obligation, knowledge about a client’s information systems is extremely
important. The discussion contemplated
by this rule would encompass all facets of the discovery of electronically-stored
information including preservation of such information, the form and timing of
production, and which party bears the costs of production. This conference may be combined with any
other conference related to discovery required by state rule or statute or by
the court.
The
rule also requires the parties to discuss any issues relating to privilege that
may arise during the course of discovery.
Because of the sheer volume of electronically-stored information that
may be produced, privilege review is often time consuming and expensive. Counsel may wish to explore the possibility
of entering into agreements that would allow production without privilege
waiver.
The
rule requires the parties to file a report with the court concerning the
discovery of electronically-stored information.
In states where such a discovery report is otherwise required,
information required to be provided by this rule may simply be included in that
report.
Finally,
any issues about which the parties were unable to reach agreement may be
resolved by the court pursuant to Section 9.
SECTION 7.
SCOPE OF DISCOVERY OF ELECTRONICALLY-STORED INFORMATION.
(a)
Absent a court order to the contrary pursuant to subsection (c), a party
is not required to provide discovery of electronically-stored information that
is not reasonably accessible because of undue burden or cost.
(b)
On motion to compel discovery or for a protective order, the party from
whom discovery of electronically-stored information is sought must show that
the information is not reasonably accessible because of undue burden or cost.
(c)
Even if the party from whom discovery of electronically-stored
information is sought establishes that the information is not reasonably
accessible because of undue burden or cost, the court may order discovery if
the requesting party shows good cause.
In determining whether good cause exists, the court shall consider the
needs of the case, the amount in controversy, resources of the parties, the
importance of the issues at stake in the litigation, and the importance of the
requested discovery in resolving the issues.
If the court finds good cause for discovery despite the burden or cost
of accessing the information, the court may order the requesting party to bear
all or part of the costs of production.
Reporter’s Notes
This rule is designed to address issues raised by the difficulties in
locating, retrieving and providing discovery of electronically-stored
information. Information that is
reasonably accessible is subject to discovery without intervention of the
court. Discovery of
electronically-stored information that is not reasonably accessible is
permitted only upon a showing of good cause.
The concept of accessibility is linked to undue burden or cost. If the information sought by the requesting
party is on sources that are accessible only by incurring undue burden or cost,
then that information is not discoverable without a showing of good cause.
Under
this rule, a responding party should produce electronically-stored information
that is relevant, or reasonably likely to lead to the discovery of admissible
evidence, not privileged and reasonably accessible. The responding party must also identify, by
category or type, the sources containing potentially responsive information
that it is neither searching nor producing.
The identification should, to the extent possible, provide enough detail
to enable the requesting party to evaluate the burdens and costs of providing
discovery and the likelihood of finding responsive information on the
identified sources.
A
party’s claim that electronically-stored information is not reasonably
accessible does not relieve the party of its common-law or statutory duties to
preserve evidence. Whether a responding
party is required to preserve unsearched sources of information that it
believes are not reasonably accessible depends on the circumstances of each
case. It is often useful for the parties
to discuss this issue early in discovery.
One fact that bears on the preservation obligation is whether the
responding party has a reasonable basis for believing that discoverable
information is only available from sources that are not reasonably accessible
and not from other reasonably accessible sources.
Once
it is established that a source of electronically-stored information is not
reasonably accessible, the court may still order that the information be
produced if good cause is shown. The
court may also order that the requesting party bear all or part of the cost of
production. In making this
determination, the court is required to consider certain factors specified in
the rule. In addition, the court may
consider additional factors, including (1) the specificity of the discovery
request; (2) the quantity of information available from other and more easily
accessed sources; (3) the failure to produce relevant information that seems
likely to have existed but is no longer available on more easily accessed
sources; (4) the likelihood of finding relevant responsive information that
cannot be obtained from other, more easily accessed sources; (5) predictions as
to the importance and usefulness of the further information; and (6) a party’s
willingness to voluntarily bear the cost of production.
SECTION 8.
CLAIMS OF PRIVILEGE OR PROTECTION AFTER PRODUCTION OF
ELECTRONICALLY-STORED INFORMATION.
(a) If
electronically-stored information is produced in discovery which is subject to
a claim of privilege or 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.
(b) After being
notified of a claim of privilege or protection under subsection (a), 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. If the party that received the
information disclosed it before being notified, the party must take reasonable
steps to retrieve the information.
(c) A party
receiving a notice of claim of privilege or protection may promptly present the
information to the court under seal for a determination of the claim. The producing party must take reasonable
steps to preserve the information until the claim is resolved.
Reporter’s Notes
The
risk of privilege waiver and the work necessary to avoid it add to the costs
and delay of discovery. When the review
is of electronically stored information, the risk of waiver and the time and
effort to avoid it can increase substantially because of the volume of
electronically stored information and the difficulty of ensuring that all
information to be produced has in fact been reviewed. This rule provides a procedure for a party to
assert a claim of privilege or trial-preparation material protection after information
is produced in discovery and, if the claim is contested, permits any party that
received the information to present the matter to the court for
resolution. The rule does not address
whether the privilege or protection that is asserted after production was
waived by the production. This issue is
left to resolution by other law.
SECTION 9.
ORDER OF COURT RELATING TO DISCOVERY OF ELECTRONICALLY- STORED
INFORMATION.
(a) The court may
make an order governing the discovery of electronically-stored
information.
(b) An order may
be made pursuant to:
(1) a motion by a party or person from whom
discovery of electronically-stored information is sought;
(2) stipulation of the parties, and if the person
from whom discovery of electronically-stored information is sought is not a
party, that person; and
(3) the court’s own motion, after reasonable
notice to, and an opportunity to be heard from, the parties and any person not
a party from whom discovery of electronically-stored information is sought.
(c) An order
governing the discovery of electronically-stored information may:
(1) determine whether electronically-stored
information is reasonably likely to be discoverable in the case;
(2) require preservation of electronically-stored
information;
(3) determine a form in which to disclose the
electronically-stored information;
(4) determine the permissible scope of discovery
of electronically-stored information;
(5) determine which party shall bear the cost of
production;
(6) determine the means for asserting or
preserving claims of privilege or protection as trial-preparation material
after production;
(7) impose sanctions for a party’s failure to
disclose or preserve
electronically-stored information; and
(8) address any other issue regarding discovery
of electronically-stored information.
Reporter’s Notes
This
rule is principally intended to facilitate the court’s involvement in issues
relating to electronic discovery at the outset of the case. Again, there is a general consensus that
early intervention by the court on these issues may facilitate orderly and
efficient discovery of electronically stored information, and avoid
difficulties later in the case. This
rule is also intended to identify, among other matters, the subjects about which
the court is authorized to govern the discovery of electronically stored
information.
SECTION 10.
LIMITATION ON SANCTIONS. Absent exceptional
circumstances, the court may not impose sanctions on a party for failing to
provide electronically-stored information lost as the result of the routine,
good-faith operation of an electronic information system.
Reporter’s Notes
This rule responds to a distinctive feature of electronic information
systems, the routine modification, overwriting, and deletion of information
that attends normal use. Under this
rule, absent exceptional circumstances, sanctions cannot be imposed for loss of
electronically-stored information resulting from the routine operation of the
party’s electronic information system if that operation was in good faith.
Examples
of this feature in present systems include programs that recycle storage media
kept for brief periods against the possibility of disaster that broadly affects
computer operation; automatic overwriting of information that has been deleted;
programs that change metadata (automatically created identifying information about the history or management of an
electronic file) to reflect the latest access to particular
electronically-stored information; and programs that automatically discard
information that has not been accessed within a defined period or that exists
beyond a defined period without an affirmative effort to store it for a longer
period of time. Similarly, many database
programs automatically create, discard or update information without specific direction
from, or awareness of, users. By
protecting against sanctions for loss of information as a result of the routine
operation of a computer system, this rule recognizes that such automatic
features are essential to the operation of electronic information systems.
This
rule applies to information lost due to the routine operation of an information
system only if the system was operated in good faith. Good faith may require that a party intervene
to modify or suspend features of the routine operation of a computer system to
prevent loss of information if that information is subject to a preservation
obligation. When a party is under a duty
to preserve information because of pending or reasonably anticipated litigation,
such intervention in the routine operation of an information system is one
aspect of what is often called a “litigation hold”. A party cannot exploit the routine operation
of an information system to evade discovery obligations by failing to prevent
the destruction of stored information it is required to preserve.
The
steps the party takes to design and implement an effective and appropriate
litigation hold are important to determining whether the routine operation of
the information system was in good faith.
Similarly, agreements the parties reached, or orders the court entered,
calling for preservation of specific electronically-stored information bear on
whether the routine operation of the electronic information system continued to
be in good faith.
In
exceptional circumstances, sanctions may be imposed for loss of information
even though the loss resulted from the routine, good faith operation of the
electronic information system. If the
requesting party can demonstrate that such a loss is highly prejudicial,
sanctions designed to remedy the prejudice, as opposed to punishing or
deterring discovery conduct, may be appropriate.
SECTION 11.
SUBPOENA FOR PRODUCTION OF ELECTRONICALLY-STORED INFORMATION.
(a) A subpoena in a civil legal proceeding may
request production of electronically-stored information and that the party
serving the subpoena, or someone acting on the party’s request, be permitted to
inspect, copy, test or sample any electronically stored information.
(b) Subject to
subsections (c) and (d), Sections 5, 7 and 8 apply to persons responding to
subpoenas as if they were parties.
(c) A party
serving a subpoena requesting production of electronically-stored information
shall take reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena.
(d) An order of
the court requiring compliance with a subpoena issued under this section shall
protect a person who is neither a party nor a party’s officer from undue burden
or expense resulting from compliance.
Reporter’s Notes
This
rule is intended to make the process for responding to a discovery request
involving electronically-stored information and the process for responding to a
subpoena congruent. A person responding
to a subpoena for electronically-stored information and parties responding to a
discovery request stand on the same footing and have the same rights and
obligations. A party or an attorney
responsible for the issuance and service of a subpoena, however, is under a
special duty to avoid imposing undue burden or expense on a person subject to
the subpoena. The court shall enforce
this duty whenever it is breached.