DRAFT
FOR DISCUSSION ONLY
UNIFORM RULES RELATING TO THE
DISCOVERY OF ELECTRONICALLY STORED INFORMATION
_______________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
WITH
PREFATORY AND REPORTER’S NOTES
Copyright © 2006
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions set forth in
this draft, including the proposed statutory language and any comments or reporter’s
notes, have not been passed upon by the National Conference of Commissioners on
Uniform State Laws or the Drafting Committee.
They do not necessarily reflect the views of the Conference and its
Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used
to ascertain the intent or meaning of any promulgated final statutory proposal.
DRAFTING
COMMITTEE ON UNIFORM 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,
KARL R. WETZEL,
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
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
8. LIMITATIONS ON DISCOVERY
RULE
9. CLAIM OF PRIVILEGE OR PROTECTION
AFTER PRODUCTION
RULE
10. SUBPOENA FOR PRODUCTION
RULE
11. UNIFORMITY OF APPLICATION AND
CONSTRUCTION
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 became 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
effective
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.
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 2. APPLICABILITY. 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 in
a manner which is consistent with, and not in derogation of, existing discovery
procedures in the applicable state.
RULE 3. CONFERENCE CONCERNING DISCOVERY OF ELECTRONICALLY
STORED INFORMATION; REPORT TO THE COURT.
(a) Not later than [21] days after each
responding party first appears 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) any issues relating to preservation of
discoverable information;
(2) the forms 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
expense of production is appropriate; and,
(7) any other issue relating to the discovery of
electronically stored information.
(b) If discovery
of electronically stored information is reasonably likely to be sought in the
proceeding, the parties shall:
(1) jointly arrange the conference required under
subsection (a);
(2) develop a proposed plan relating to discovery
of the information; and
(3) prepare a written report, which must be
submitted to the court not later than [14] days after the conference, that summarizes the plan and states the position of each
party as to any issue about which they are unable to agree.
Reporter’s Notes
There is almost universal agreement that
early attention to issues relating to the discovery of electronically stored
information, including preservation issues, facilitates orderly discovery. This rule requires the parties to discuss
issues relating to the discovery of electronically stored information at the
outset of the case, and as each additional party appears in the proceeding. While the rule requires more than one
conference and report when additional parties appear in the action, it may be
preferable that the parties ultimately prepare a single, comprehensive report.
The parties are required to confer regarding
the form or forms of production, which may include the extent to which metadata
or types of embedded data, if present, are to be preserved and produced. The parties should also confer regarding the
form or forms in which the information is to be maintained prior to final
resolution, by the court or the parties, of issues relating to the form of
production.
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 to
the extent they may be relevant to the issues in dispute. 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 or to protection as trial preparation
materials that may arise during the course of discovery. Because of the sheer volume of electronically
stored information that may be produced, pre-production review of the
information is often time consuming and expensive. Counsel may wish to explore the possibility
of entering into agreements that would allow production without waiver of
privilege or protection as trial preparation materials.
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.
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 forms 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, courts are strongly encouraged to do so. Early intervention by the court may facilitate
orderly discovery of such information and avoid difficulties later in the case.
The rule permits the court to issue an order
relating to discovery of electronically stored information pursuant to motion
of a party, stipulation of the parties, or on the court’s own motion but only
after providing the parties notice and an opportunity to be heard.
RULE 5. LIMITATION ON SANCTIONS. Absent exceptional
circumstances, the court may not impose sanctions on a party under these rules
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 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 the forms 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. The rule recognizes
that electronically stored information may exist in multiple forms, and 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 or forms and allows the
responding party to object, and creates a default rule for production if no
form is specified.
RULE 8. LIMITATIONS ON DISCOVERY.
(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. In its objection to the production of such
information, the party shall identify the reason for such 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 from a source that 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
from a source that 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 the burden and cost is justified under
the circumstances of the case.
(d) If the court finds good cause for production
of electronically stored information from a source that is not reasonably
accessible, it may set conditions for its discovery which may include
allocation of the expense of production.
(e) The court shall limit the frequency or extent
of production of any electronically stored information, even from a source that
is reasonably accessible, if the court determines that:
(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; or
(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.
Reporter’s
Notes
This rule is designed to address the unique
issues raised by the difficulties in locating, retrieving and providing
discovery of electronically stored information.
Information that is from sources that are reasonably accessible is
subject to discovery without intervention of the court, subject to the
limitations generally applicable to discovery under the state’s existing
discovery rules. Discovery of
electronically stored information that is from sources that are reasonably
accessible is also subject to the limitation imposed by this rule, which balances
the likely benefit of the information against the burden of its production.
Discovery of electronically stored
information that is from sources that are not reasonably accessible is
required, over objection, only upon a showing of good cause. In determining whether good cause for
production exists, the court should consider the limitations of subsection (e)
that balance the expense and potential benefits of discovery. The decision whether to require the responding
party to search for and produce information that is from sources that are not
reasonably accessible depends not only on the burden and expense of doing so
but also on whether the burden and expense can be justified in the
circumstances of one case. Appropriate
considerations may include: (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 from 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. If the court finds good
cause for production, the court may allocate to the requesting party the
expense, in whole or in part, of production.
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
which it contends are not reasonably accessible. The identification should, to the extent
possible, provide enough detail to enable the requesting party to evaluate the
burden and expense of providing discovery and the likelihood of finding
responsive information from 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.
RULE 9. CLAIM 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 immediately return,
sequester, or destroy the specified information and any copies it has and,
subject to subsection (c), 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 present the information to the court
under seal for a determination of the claim.
The 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 or ethical implications
of use of such data. These issues are
left to resolution by other law or authority.
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. This rule is not intended to supplant
protections under the state’s existing rules governing discovery afforded to a
person responding to a subpoena. 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
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.
This rule protects a person responding to a
subpoena for production of electronically stored information from undue burden
or expense resulting from compliance with the subpoena. In determining whether there is undue burden
or expense, the court may consider, among other factors, the existence of any
relationship between such person and a party to the civil proceeding.
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. REPEALS. The following rules are repealed:
. . . .
RULE 13. EFFECTIVE DATE. These rules take effect [insert effective
date].
[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