DRAFT
FOR DISCUSSION ONLY
UNIFORM
RULES RELATING TO THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
_______________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
For February 2007 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
MICHAEL B. GETTY,
AMERICAN BAR ASSOCIATION ADVISORS
JEFFREY ALLEN,
SCOTT F. PARTRIDGE,
GEORGE LYNN PAUL,
EXECUTIVE DIRECTOR
JOHN A. SEBERT, 211 E. Ontario St., Suite 1300, Chicago, IL 60611, 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 3. CONFERENCE CONCERNING DISCOVERY OF ELECTRONICALLY
STORED INFORMATION; REPORT TO THE COURT
RULE 4. ORDER
RELATING TO DISCOVERY OF ELECTRONICALLY STORED INFORMATION
RULE 5. LIMITATION ON SANCTIONS
RULE 6. REQUEST FOR PRODUCTION
RULE 9. CLAIMS OF PRIVILEGE OR PROTECTION AFTER
PRODUCTION
RULE 10. SUBPOENA
FOR PRODUCTION
RULE 11. UNIFORMITY OF APPLICATION AND CONSTRUCTION................................... 13
RULE 12. RELATION TO
ELECTRONIC SIGNATURES IN GLOBAL AND
NATIONAL COMMERCE ACT................................................................................ 13
RULE 13. REPEALS..................................................................................................................... 14
RULE 14. EFFECTIVE DATE...................................................................................................... 14
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. DEFINITIONS. In these rules:
(1) “Discovery”
means the process of providing information in a civil proceeding in the courts
of this state pursuant to [insert reference to state rules of civil procedure]
or these rules.
(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 perceivable form.
(4) “Person” means
an individual, corporation, business trust, estate, trust, partnership, limited
liability company, association, joint venture, public corporation, government
or governmental subdivision, agency, or instrumentality, 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
supplement [insert reference to state rules of civil procedure].
Reporter’s Notes
These rules are not
intended to apply to cases where discovery of electronically stored information
is not likely. Existing rules of civil
procedure govern discovery in such cases.
These rules supplement existing rules of civil procedure and are
intended to be applied consistent therewith.
RULE 3. CONFERENCE
CONCERNING DISCOVERY OF ELECTRONICALLY STORED INFORMATION; REPORT TO THE COURT.
(a) Not later than [21] days after each
responding party makes an initial appearance in a civil proceeding, the parties
shall confer concerning whether discovery of electronically stored information
is reasonably likely to be sought in the proceeding. If discovery of electronically stored
information is reasonably likely to be sought, 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 of
protection of the information as trial-preparation materials, including whether
such claims may be asserted after production;
(5)
the method for asserting or preserving confidentiality and proprietary
status of information relating to a party or a person 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 the proceeding, the parties shall develop a proposed plan
relating to discovery of electronically stored information which indicates the
positions and proposals of the parties concerning the matters listed in
subsection (a).
(c) Attorneys of
record and unrepresented parties that have appeared in a civil proceeding are
responsible for jointly arranging the conference required under subsection (a),
developing a proposed plan, and preparing a written report that summarizes the plan and specifies any issues about
which the parties were unable to agree.
Each attorney and unrepresented party shall participate in good faith in
the conference. The report must be
submitted to the court not later than [14] days after the conference.
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 parties 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 4.
RULE 4. ORDER RELATING TO DISCOVERY OF ELECTRONICALLY
STORED INFORMATION.
(a) The court may
issue an order governing the discovery of electronically stored information
pursuant to:
(1) a
motion by a party seeking discovery of electronically stored information or by a
party or person from which discovery of electronically stored information is
sought;
(2)
stipulation of the parties and, if the person from which discovery of
electronically stored information is sought is not a party, that person; or
(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 which discovery
of electronically stored information is sought.
(b) An order
governing discovery of electronically stored information may address:
(1)
whether discovery of electronically stored information is reasonably
likely to be sought in the proceeding;
(2)
preservation of the information;
(3)
the form in which the information is to be produced;
(4)
the time within which the information is to be produced;
(5)
the permissible scope of discovery of the information;
(6)
the methods for asserting or preserving claims of privilege or of
protection of the information as trial-preparation material after production;
(7)
the method for asserting or preserving confidentiality and the
proprietary status of information relating to a party or a person not a party
to the proceeding;
(8)
allocation of the expense of production; and
(9) any other issue relating to the 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 5. LIMITATION ON SANCTIONS. Absent exceptional circumstances, the court may not
impose sanctions on a party for failure 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 6. REQUEST FOR PRODUCTION.
(a) In a civil proceeding, a party may serve on
any other party a request for production of electronically stored information
and for permission of the party making the request, or person acting on the
requestor’s behalf, to inspect, copy, test, or sample the information.
(b) A party on
which a request to produce electronically stored information has been served
shall, in a timely manner, serve a response on the requesting party. The response shall state, with respect to
each item or category in the request:
(1)
that inspection, copying, testing, or sampling of the information will
be permitted as requested; or
(2) any objection to the request and the reasons for the objection.
Reporter’s
Notes
This rule is intended
to establish that the discovery of information in electronic form stands on an
equal footing with discovery of paper documents.
RULE 7.
(a) A party
requesting production of electronically stored information may specify a form
in which each type of information is to be produced.
(b) If a party
responding to a request for production of electronically stored information
objects to a specified form for producing the information, or if no form is
specified in the request, the responding party shall state in its response the
form in which it intends to produce each type of the 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 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 rule for production if no
form is specified.
(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 which 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 if good cause exists, the court shall consider whether:
(1) it is possible to obtain the information from
some other source that is more convenient, less burdensome, or less expensive,
or the discovery sought is unreasonably cumulative or duplicative;
(2) the party seeking discovery has had ample
opportunity by discovery in the action to obtain the information sought;
(3) the likely benefit of the information
outweighs the burden or expense of the proposed discovery, taking into account
the needs of the case, the amount in controversy, the resources of the parties,
the importance of the issues in the litigation, and the importance of the
requested discovery in resolving the issues.
(d)
If the court finds good cause for discovery, it may order allocation of
the expense 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 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, 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 9. CLAIMS OF PRIVILEGE OR PROTECTION AFTER
PRODUCTION.
(a) If
electronically stored information produced in discovery is subject to a claim
of privilege or of 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 the claim.
(b) After being
notified of a claim of privilege or of protection under subsection (a), a party
shall 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 shall take reasonable
steps to retrieve the information.
(c) A party
receiving a notice of claim of privilege or of protection under subsection (a)
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 10. SUBPOENA FOR PRODUCTION.
(a) A subpoena in a civil proceeding may require
that electronically stored information be produced and that the party serving
the subpoena, or person acting on the party’s request, be permitted to inspect,
copy, test, or sample the information.
(b) Subject to
subsections (c) and (d), Rules 7, 8 and 9 apply to a person responding to a
subpoena as if that person was a party.
(c) A party
serving a subpoena requiring 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.
RULE
11. UNIFORMITY OF APPLICATION AND
CONSTRUCTION. In applying and construing
these rules, consideration must be given to the need to promote uniformity of
the law with respect to its subject matter among the states that adopt these
rules.
RULE 12. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. These
rules modify, limit, and supersede the federal Electronic Signatures in Global
and National Commerce Act, 15 U.S.C. Section 7001, et seq., but do not modify, limit, or supersede Section 101(c) of
that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of
the notices described in Section 103(b) of that act, 15 U.S.C. Section
7003(b).
Comment
In 2000, Congress
enacted the “Electronic Signatures in Global and National Commerce Act”, 106 Pub.L.No. 229, 114 Stat. 464, 15 U.S.C.
§ 7001, et seq. (popularly known as
“E-Sign”). E-Sign largely tracks the
Uniform Electronic Transactions Act (UETA).
Section 102 of E-Sign, entitled “Exemption to preemption”, provides in
pertinent part that:
(a) A State statute, regulation, or other rule of
law may modify, limit, or supersede the provisions of section 101 with respect
to State law only if such statute, regulation, or rule of law--
(1)
constitutes an enactment or adoption of the Uniform Electronic Transactions Act
as approved and recommended for enactment in all the States by the National
Conference of Commissioners on Uniform State Laws in 1999 [with certain
exceptions] or
(2) (A) specifies the alternative procedures or
requirements for the use or acceptance (or both) of electronic records or
electronic signatures to establish the legal effect, validity, or
enforceability of contracts or other records, if [they meet certain criteria]
and
(B)
if enacted or adopted after the date of the enactment of this Act, makes
specific reference to this Act.
15 U.S.C. § 7002(a). The
inclusion of this section is necessary to comply with the requirement that the
rules “make[] specific reference to this Act” pursuant to 15 U.S.C. §
7002(a)(2)(B) if the rules contain a provision authorizing electronic records
or signatures in place of writings or written signatures.
RULE 13. REPEALS.
The following rules are repealed:
(1) . . . .
(2) . . . .
(3) . . . .
RULE 14. EFFECTIVE DATE. These rules take effect . . . .
[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