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. November 21, 2006 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 BLACKBURN, 1673 W. Shoreline Dr., Suite 200, P.O. Box 7808, Boise, ID 83707, Chair ALBERT D. BRAULT, 101 S. Washington St., Rockville, MD 20850-2319 PAUL W. CHAIKEN, 84 Harlow St., P.O. Box 1401, Bangor, ME 04402-1401 PAUL CONDINO, S0799 House Office Bldg., P.O. Box 30014, Lansing, MI 48909-7514 CULLEN M. GODFREY, Texas A&M University System, 200 Technology Way, Suite 2079, College Station, TX 77845-3424 LAWRENCE R. KLEMIN, P.O. Box 955, Bismarck, ND 58502-0955 THEODORE C. KRAMER, 45 Walnut St., Brattleboro, VT 05301 STEPHEN M. ORLOFSKY, 210 Lake Drive E., Suite 200, Cherry Hill, NJ 08002 ANITA RAMASASTRY, University of Washington School of Law, William H. Gates Hall, Box 353020, Seattle, WA 98195-3020 MARK H. RAMSEY, P.O. Box 309, Claremore, OK 74018-0309 JAMES J. WHITE, University of Michigan Law School, 625 S. State St., Room 1035, Ann Arbor, MI 48109-1215 JOHN L. CARROLL, Cumberland School of Law, Samford University, 800 Lakeshore Dr., Birmingham, AL 35229, Reporter EX OFFICIO HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President MICHAEL B. GETTY, 817 W. Washington Blvd. #502, Chicago, IL 60607, Division Chair AMERICAN BAR ASSOCIATION ADVISORS JEFFREY ALLEN, 436 14th St., Suite 1400, Oakland, CA 94612-2716, ABA Advisor SCOTT F. PARTRIDGE, 910 Louisiana St., Houston, TX 77002-4916, ABA Section Advisor GEORGE LYNN PAUL, 40 N. Central Ave., Suite 1900, Phoenix, AZ 85004-4446, ABA Section Advisor 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 LAWS 211 E. Ontario Street, Suite 1300 Chicago, Illinois 60611 312/915-0195 www.nccusl.org UNIFORM RULES RELATING TO THE DISCOVERY OF ELECTRONICALLY-STORED INFORMATION TABLE OF CONTENTS PREFATORY NOTE 1 RULE 1. SHORT TITLE 3 RULE 2. DEFINITIONS 3 RULE 3. APPLICABILITY 4 RULE 4. CONFERENCE CONCERNING DISCOVERY OF ELECTRONICALLY- STORED INFORMATION; REPORT TO THE COURT 4 RULE 5. ORDER OF COURT RELATING TO DISCOVERY OF ELECTRONICALLY-STORED INFORMATION 6 RULE 6. LIMITATION ON SANCTIONS 7 RULE 7. DISCOVERY OF ELECTRONICALLY-STORED INFORMATION 8 RULE 8. FORM OF PRODUCTION OF ELECTRONICALLY-STORED INFORMATION 9 RULE 9. SCOPE OF DISCOVERY OF ELECTRONICALLY-STORED INFORMATION 10 RULE 10. CLAIMS OF PRIVILEGE OR PROTECTION AFTER PRODUCTION OF ELECTRONICALLY-STORED INFORMATION 12 RULE 11. SUBPOENA FOR PRODUCTION OF ELECTRONICALLY-STORED INFORMATION 12 UNIFORM RULES RELATING TO THE DISCOVERY OF ELECTRONICALLY-STORED INFORMATION PREFATORY NOTE 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 December 1, 2006. The NCCUSL Drafting Committee held its initial meeting on April 21-22, 2006 in Detroit, Michigan. At that time, the Drafting Committee decided not to reinvent the wheel. It was the Drafting Committee’s judgment that the significant issues relating to the discovery of information in electronic form had been vetted during the Federal Rules amendment process. Accordingly, this draft mirrors the spirit and direction of the recently adopted amendments to the Federal Rules of Civil Procedure. The Drafting Committee has freely adopted, often verbatim, language from both the Federal Rules and comments that it deemed valuable. The rules are modified, where necessary, to accommodate the varying state procedures and are presented in a form that permits their adoption as a discrete set of rules applicable to discovery of electronically-stored information. 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 November 14, 2006, the NCCUSL Executive Committee authorized that the draft take the form of proposed judicial rules and be re-titled “Uniform Rules Relating to the Discovery of Electronically-Stored Information”. 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. RULE 3. APPLICABILITY. (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. FORM OF PRODUCTION OF ELECTRONICALLY-STORED INFORMATION. (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 May 17, 2004 and revised August 3, 2004. ?? ?? ?? ?? 2 13