DRAFT
FOR DISCUSSION ONLY
UNIFORM
RULES RELATING TO THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
_______________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
With Changes Suggested by Style Committee
Shown in Strike and Score
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
JOHN A. SEBERT,
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
65. LIMITATION ON SANCTIONS
RULE
76. REQUEST FOR
PRODUCTIONDISCOVERY OF ELECTRONICALLY-STORED
INFORMATION
RULE
87. FORM OF PRODUCTION OF ELECTRONICALLY-STORED
INFORMATION
RULE
98. SCOPE OF DISCOVERY OF ELECTRONICALLY-STORED
INFORMATION
RULE
109. CLAIMS OF PRIVILEGE OR PROTECTION AFTER
PRODUCTION OF ELECTRONICALLY-STORED
INFORMATION
RULE
1110. SUBPOENA FOR PRODUCTION OF ELECTRONICALLY-STORED
INFORMATION
RULE
11. UNIFORMITY OF APPLICATION AND CONSTRUCTION................................... 15
RULE
12. RELATION TO ELECTRONIC SIGNATURES IN
GLOBAL AND
NATIONAL COMMERCE ACT................................................................................. 15
RULE
13. REPEALS..................................................................................................................... 16
RULE
14. EFFECTIVE DATE...................................................................................................... 16
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-storedelectronically
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-storedelectronically
stored information, and (5) clarify the application of the
sanctions rules to electronically-storedelectronically
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 electronically-storedelectronically
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 Electronically-StoredElectronically
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 21. 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)
“Electronic” means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
(23) “Electronically-storedElectronically
stored information” means information that is stored in a
machine readable an electronic medium
from which it and is
retrievable in perceivable form.
(34) “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,;
public corporation; or any other legal or commercial entity.
Reporter’s Notes
The
definition of “electronically-storedelectronically
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-storedelectronically
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].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. TheyThese
rules are not intended to apply to cases where discovery of electronically-storedelectronically
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. 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.
(a) Not later than [21] days after each defendant
has filed anresponding party makes an initial
appearance in a civil proceeding, the parties shall confer concerning whether discovery
of electronically-storedelectronically
stored information is reasonably likely to be sought in
discovery in the proceeding.
If discovery of electronically-storedelectronically
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 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 partyies
and or a 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-storedelectronically
stored information.
(b) If the parties
agree that discovery of electronically-storedelectronically
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-storedelectronically
stored information that which
indicates the views positions and
proposals of the parties concerning the matters specified listed
in subsection (a).
(c) Each
attorneyAttorneys of record and each
unrepresented partiesy
that has have appeared
in a civil proceeding is jointlyare
responsible for jointly arranging the conference
required under subsection (a), for participating
in good faith in the conference, developing a proposed plan, and submitting
to the courtpreparing a written report,
not later than [14] days after the conference, that summarizes the plan and specifies the
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-storedelectronically
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-storedelectronically
stored information at the outset of the case, and as additional defendants
(including third-party defendants) 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-storedelectronically
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 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 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 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 54.
(a) The court may make
issue an order governing the discovery
of electronically-storedelectronically
stored information.
(b)
An order may be made pursuant to:
(1) a
motion by a party seeking discovery of electronically-storedelectronically
stored information, or
by a party or person from whom which discovery
of electronically-storedelectronically
stored information is sought;
(2)
stipulation of the parties, and,
if the person from whom which discovery
of electronically-storedelectronically
stored information is sought is not a party, that person; and
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 whom
which discovery of electronically-storedelectronically
stored information is sought.
(cb) An order governing the discovery
of electronically-storedelectronically
stored information may address:
(1)
whether discovery of electronically-storedelectronically
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 is
to be produced;
(4)
the time within which the information shall is
to be produced;
(5)
the permissible scope of discovery of the information;
(6) which party shall bear the cost of
production;
(76) the means methods
for asserting or preserving claims of privilege or of
protection of the information as
trial-preparation material after production;
(87) the method for asserting or preserving
confidentiality and the proprietary status of information relating to a
partyies and
or a persons not
a party to the proceeding; and
(8) allocation of the expense of production; and
(9)
any other issue relating to the discovery
of electronically-storedelectronically
stored information.
Reporter’s Notes
Although this rule
does not expressly require the court to issue an order relating to discovery of
electronically-storedelectronically
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-storedelectronically
stored information, and avoid difficulties later in the case.
RULE 65. LIMITATION ON SANCTIONS. Absent exceptional circumstances, the court may not
impose sanctions on a party for failing failure
to provide electronically-storedelectronically
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-storedelectronically
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-storedelectronically
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 76. REQUEST FOR
PRODUCTION.DISCOVERY OF ELECTRONICALLY-STORED
INFORMATION.
(a) A party in In
a civil proceeding, a party
may serve on any other party in the proceeding a request for
production of electronically-storedelectronically
stored information and for permission of the party making the
request, or someone person acting
on the requestor’s behalf, to inspect, copy, test, or
sample requested electronically-stored the
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
which a request to produce electronically-storedelectronically
stored information has been served shall, in a
timely manner, serve a response to 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 electronically-storedthe information will be permitted as
requested; or unless the request
is objected to. If a request is objected
to, the objecting party shall state
(2) any objection to the request and
the reasons for
the objection.
Reporter’s Notes
This rule is intended
to confirm establish that
the discovery of information in electronic form stands on an equal footing with
discovery of paper documents.
RULE 87.
OF ELECTRONICALLY-STORED
INFORMATION.
(a) A party
requesting production of electronically-storedelectronically
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 of electronically
stored information objects to a specified form
for producing electronically-storedthe
information, or if no form was is specified
in the request, the responding party shall state in its response the form in
which it intends to produce each type of electronically-storedthe
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-storedelectronically
stored information, the responding party shall produce that
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-storedelectronically
stored information in more than one form.
Reporter’s Notes
The
form of production is more important to the exchange of electronically-storedelectronically
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-storedelectronically
stored information more efficient and cost-effective. The rule recognizes that different forms of
production may be appropriate for different types of electronically-storedelectronically
stored information. The
rule allows the requesting party to specify the form, allows the responding
party to object, and creates a default position rule
for production if no form is specified.
RULE 98. 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-storedelectronically
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-storedelectronically
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 which
discovery of electronically-storedelectronically
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 if
good cause exists, the court shall consider whether:
(1) whether 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, 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
likely benefit of the information outweighs 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.
(d) If the court finds good cause
for discovery, it shall consider requiring the requesting party to
bear all or part may order
allocation 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-storedelectronically
stored information.
Information that is reasonably accessible is subject to discovery
without intervention of the court.
Discovery of electronically-storedelectronically
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-storedelectronically
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-storedelectronically
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-storedelectronically
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 109. CLAIMS OF PRIVILEGE OR PROTECTION AFTER
PRODUCTION OF ELECTRONICALLY-STORED
INFORMATION.
(a) If electronically-storedelectronically
stored information is produced
in discovery which 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 itthe
claim.
(b) After being
notified of a claim of privilege or of protection
under subsection (a), a party must 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 must
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-storedelectronically
stored information, the risk of waiver and the time and effort to
avoid it can increase substantially because of the volume of electronically-storedelectronically
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 1110. SUBPOENA FOR PRODUCTION OF ELECTRONICALLY-STORED
INFORMATION.
(a) A subpoena in a civil legal proceeding
may request require that
electronically-storedelectronically
stored information be produced and that the party serving the
subpoena, or someone person acting
on the party’s request, be permitted to inspect, copy, test, or
sample the electronically-stored information.
(b) Subject to
subsections (c) and (d), Rules 7, 8,
and 9 and 10 apply
to a persons
responding to a subpoenas as
if they were partiesthat person was a
party.
(c) A party
serving a subpoena requesting requiring production
of electronically-storedelectronically
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-storedelectronically
stored information and the process for responding to a subpoena
congruent. A person responding to a
subpoena for electronically-storedelectronically
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