DRAFT
FOR DISCUSSION ONLY
UNIFORM
RULES RELATING TO THE DISCOVERY OF ELECTRONICALLY-STORED INFORMATION
_______________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
With Changes from the November 2006 Drafting
Committee Meeting
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 RULES RELATING TO THE DISCOVERY OF ELECTRONICALLY-STORED
INFORMATION
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 S. Riverside Plaza,
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
RULES RELATING TO THE DISCOVERY OF
ELECTRONICALLY-STORED
INFORMATION
TABLE
OF CONTENTS
RULE
4. CONFERENCE CONCERNING DISCOVERY OF
ELECTRONICALLY-
STORED INFORMATION; REPORT TO THE COURT
RULE
5. ORDER OF COURT RELATING TO DISCOVERY
OF ELECTRONICALLY-STORED INFORMATION
RULE
6. LIMITATION ON SANCTIONS
RULE
7. DISCOVERY OF ELECTRONICALLY-STORED
INFORMATION
RULE
8. FORM OF PRODUCTION OF
ELECTRONICALLY-STORED INFORMATION
RULE
9. SCOPE OF DISCOVERY OF
ELECTRONICALLY-STORED INFORMATION
RULE
10. CLAIMS OF PRIVILEGE OR PROTECTION
AFTER PRODUCTION OF ELECTRONICALLY-STORED INFORMATION
RULE
11. SUBPOENA FOR PRODUCTION OF
ELECTRONICALLY-STORED INFORMATION
UNIFORM
RULES RELATING TO THE DISCOVERY OF
ELECTRONICALLY-STORED
INFORMATION
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 typewritten pages. One gigabyte is the equivalent of 500,000
typewritten pages. Large corporate computer networks create backup data
measured in terabytes, or 1,000,000 megabytes; each terabyte 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
The draft originally
took the form of a proposed statute entitled “Uniform Discovery of Electronic
Records Act”. At the request of the
Drafting Committee, on
UNIFORM RULES RELATING TO
THE DISCOVERY OF
ELECTRONICALLY-STORED
INFORMATION
RULE 1. SHORT TITLE. These [rules] may be cited as the Uniform
Rules Relating to the Discovery of Electronically-Stored Information.
RULE 2. DEFINITIONS. In these [rules]:
(1) “Discovery”
means the process of providing information in a civil proceeding in the courts
of this state by a person pursuant to [insert reference to state rules of civil
procedure] or these [rules].
(2)
“Electronically-stored information” means information that is stored in
a machine readable medium from which it is retrievable in perceivable form.
(3) “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 definition of “electronically-stored information” is 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 terms “information” and “record”, is
intended to be expansive and to encompass any type of information that is
stored electronically.
The
term “electronically stored information” is not intended to include traditional
“writings” (i.e., information stored solely on paper or another tangible,
non-electronic, medium). Discovery of
“writings” is the subject of existing rules of civil procedure.
The
term “machine readable” is a term of art pertaining to information that can be
read and processed by a machine. (See, IEEE
Standard Computer Dictionary (1990), definition
of “machine readable”.)
Judicial Note
The term “civil
proceeding” as used in the definition of “Discovery” may need to be modified in
certain states to specify that it includes civil courts with differing or
limited jurisdiction within the same state.
As the term is used in subsection (1), it is intended to encompass not
only civil courts of general jurisdiction, but also courts of limited jurisdiction
such as domestic relations and probate courts.
The term is used in various rules, including Rules 3, 4 and 7.
(a) These [rules]
apply to civil proceedings in which electronically-stored information is
reasonably likely to be subject to discovery.
(b) The provisions
of these [rules] may be made applicable in a particular civil proceeding by
agreement of the parties or order of the court.
(c) These [rules]
supplement 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.
RULE 4. CONFERENCE
CONCERNING DISCOVERY OF ELECTRONICALLY-STORED INFORMATION; REPORT TO THE COURT.
(a) Not later than [21] days after each defendant
has filed an appearance in a civil proceeding, the parties shall confer
concerning whether electronically-stored information is reasonably likely to be
sought in discovery in the proceeding.
If electronically-stored information is reasonably likely to be sought
in discovery, the parties at the conference shall discuss:
(1) preservation of the information;
(2) the form in which the information will be
produced;
(3) the time within which the information will be
produced;
(4) the method for asserting or preserving claims
of privilege or protection as trial-preparation materials, including whether
claims may be asserted after production;
(5)
the method for asserting or preserving confidentiality and proprietary
status of information relating to parties and persons not a party to the civil
proceeding;
(6) whether allocation among the parties of the
cost of production is appropriate; and,
(7)
any other issue relating to the discovery of electronically-stored
information.
(b) If the parties
agree that discovery of electronically-stored information is reasonably likely
to be sought in discovery in the proceeding, the parties shall develop a
proposed plan relating to discovery of electronically-stored information that
indicates the views and proposals of the parties concerning the matters
specified in subsection (a).
(c) 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 participating in good faith in the conference, developing a proposed
plan, and submitting to the court a written report, not later than [14] days
after the conference, that 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, and as additional
defendants (including third-party defendants) appear in the proceeding.
Some local Federal
Rules require counsel, in advance of this sort of a conference, to review the
potential production of electronically-stored information with the client in
order to understand how information is stored and how it can be retrieved. While this rule does not expressly impose
such an obligation, counsel’s meaningful participation in the conference and
compliance with discovery obligations require that counsel promptly and
diligently familiarize themselves with their clients’ information systems. Information systems are complex, and exhibit
emergent and self-organizing properties.
Often no one person will have a complete understanding of any single
information system.
The discussion
contemplated by this rule would encompass all facets of the discovery of
electronically-stored information. 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 Rule 5.
RULE 5. 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 seeking discovery of
electronically-stored information, or 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 address:
(1) whether electronically-stored information is
reasonably likely to be sought in discovery in the proceeding;
(2) preservation of the information;
(3) the form in which the information shall be
produced;
(4) the time within which the information shall
be produced;
(5) the permissible scope of discovery of the
information;
(6) which party shall bear the cost of
production;
(7) the means for asserting or preserving claims
of privilege or protection as trial-preparation material after production;
(8)
the method for asserting or preserving confidentiality and the
proprietary status of information relating to parties and persons not a party
to the proceeding; and
(9) any other issue relating to discovery of
electronically-stored information.
Reporter’s Notes
Although this rule
does not expressly require the court to issue an order relating to discovery of
electronically-stored information at any particular stage of the proceeding,
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.
RULE 6. 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 is identical to its Federal Rule equivalent, Federal Rule 37(f). As noted in the comments to Federal Rule
37(f), the 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.
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.
This rule restricts
the imposition of sanctions. It does not
prevent a court from making the kinds of adjustments frequently used in
managing discovery if a party is unable to provide relevant responsive
information. For example, a court could
order the responding party to produce an additional witness for deposition,
respond to additional interrogatories, or make similar attempts to provide
substitutes or alternatives for some or all of the lost information.
RULE 7. 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 requested electronically-stored information. The request may ask the party on whom the
request is served to produce electronically-stored information in a specific form.
(b) A party on
whom a request to produce electronically-stored information has been served shall
in a timely manner serve a response to the requesting party. The response 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. If a
request is objected to, 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.
RULE 8.
(a) A party
requesting production of electronically-stored information may specify a form
in which each type of 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 in its response the form in which it intends
to produce each type of 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 a type of electronically-stored information, the
responding party shall produce that 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.
RULE 9. 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 from
sources that the party identifies as not reasonably accessible because of undue
burden or expense.
(b)
On motion to compel discovery or for a protective order relating to the
discovery of electronically-stored information, a party claiming that the
information is not reasonably accessible because of undue burden or expense
bears the burden of so demonstrating.
(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 expense, the court may order discovery if
the requesting party shows good cause.
In determining whether good cause exists, the court shall consider:
(1) whether the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive;
(2) whether the party seeking discovery has had
ample opportunity by discovery in the action to obtain the information sought;
(3) whether the burden or expense of the proposed
discovery outweighs its likely benefit, taking into account the needs of the
case, the amount in controversy, the 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, it shall consider requiring the
requesting party to bear all or part of the expense of production, and may so
order.
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 expense. If the information sought by the requesting
party is on sources that are accessible only by incurring undue burden or
expense, 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 expense 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.
RULE 10. 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 shall 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.
RULE 11. SUBPOENA FOR PRODUCTION OF
ELECTRONICALLY-STORED INFORMATION.
(a) A subpoena in a civil legal proceeding may
request that electronically-stored information be produced and that the party
serving the subpoena, or someone acting on the party’s request, be permitted to
inspect, copy, test or sample electronically-stored information.
(b) Subject to
subsections (c) and (d), Rules 8, 9 and 10 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 Rule 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.
[1] “How much information 2003?” at www.sims.berkeley.edu/research/projects/how-much-info-2003.
[2] Report of the Civil Rules Advisory Committee dated