PROPOSED RULES
for
DISCOVERY OF ELECTRONIC
DATA & DOCUMENTS
© Richard E. Best, 1998,1999,2000,2001 All rights reserved
DISCOVERY CASE OUTLINES
see also document case outline
California Civil Discovery
DISCOVERY OF ELECTRONIC DATA
SUBMIT PROPOSED RULES TO best@justice.com
It is nice to talk about discovery rules but follow up with your proposed rules. As you confront electronic
discovery issues, you will be in the best position to determine if rules need to be modified or created to handle
discovery needs and you will be in the best position to draft appropriate rules and submit them to your bar association
or other professional organization or directly to the rule making authorities in your jurisdiction. Take the time.
Write the rule. Submit it for consideration. You will be making a contribution even if it is not adopted in the
form you prefer. At the same time, send a copy of your proposal to this site for posting so that others can have
the benefit of your thoughts and experience. In addition, submit samples of court orders or stipulated protocols
for electronic discovery with your comments so that others can benefit from the experience and use it as a guide
for future acts and orders.
SUBJECTS FOR RULES
Memo of May 2000 from Richard E. Best to California Lawyer's Committee for Electronic Discovery Rules re subjects for consideration by committee
RULES ADOPTED IN CALIFORNIA
RULES ADOPTED OUTSIDE OF CALIFORNIA
PROPOSED RULES
RULES ADOPTED IN CALIFORNIA
CODE OF CIVIL PROCEDURE
CCP §2031(g)(1) 2d¶ translation of data compilations into reasonably usable form at the expense of the demanding party
CCP §2017(e) modification of procedures by court order or rule of court to use technology in conducting discovery
CCP §2025(h)(3) deposition attendance by telephone and other remote electronic means
CALIFORNIA RULES OF COURT
RULES ADOPTED OUTSIDE OF CALIFORNIA
STATES RULES AND STATUTES
TEXAS RULES OF CIVIL PROCEDURE http://www.supreme.courts.state.tx.us/rules
Rule 196.4 Electronic or Magnetic Data. Must specifically request E-data and specify the form; produce only what is "reasonably available" in "ordinary course of business"; object if cannot produce through reasonable efforts in form requested; cost shifting for reasonable expenses of any extraordinary steps.
Rule 199.1 (b) et seq Depositions by telephone or other remote electronic means. Reasonable notice required; depo deemed taken at location of witness; witness must be sworn by person in presence of witness but court reporter may be with party noticing the deposition. any party can attend. Party noticing depo must arrange for others to attend by same remote electronic means. If only non-noticing parties use remote access, they must make arrangements.
ILLINOIS
Rule 201(b)(1) permits discovery of "all retrievable information in computer storage."
(b)(2) permits apportionment of costs of retrieval of information including attorneys' fees
ALASKA
Rule 30(b)(7) deposition by telephone or remote electronic means
FEDERAL RULES
PROPOSED MODEL RULE REGARDING
PRODUCTION OF DATA OR INFORMATION IN ELECTRONIC FORM;
COST-SHIFTING AND
SAFE HARBOR
Thomas Y. Allman; proposal July, 2002
See below re explanation and background for proposal
[Electronic Discovery; Provisions for]
(a) General. To obtain discovery of data or information that exists in electronic, digital or magnetic form, a
requesting party must specifically request production of such data or information and specify the form in which
it should be produced. The responding party must produce the data or information that is responsive to the request
and is reasonably available to the responding party in the ordinary course of business. If the responding party
cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested,
the responding party must state an objection complying with these rules.
(b) Cost-Shifting For Extraordinary Steps. A court may order, upon showing of substantial need, production of data
or information that is otherwise subject to production but is not reasonably available in the ordinary course of
business. If the court orders production of such data or information in the requested or other form, the court
shall also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve
and produce the information.
(c) Safe-Harbor; Sanctions. Nothing in these rules shall require the responding party to suspend or alter the operation
in good faith of disaster recovery or document retention systems absent a preservation order issued upon good cause
shown, which shall not issue unless the standards applicable to obtaining injunctive relief are met. No sanctions
or other relief predicated upon a failure to maintain or preserve documents or data shall be entered in the absence
of a discovery request or preservation order that describes with particularity the specific documents or data requested
and evidence that the party upon whom the request or order was served willfully failed to preserve such documents
or data. Evidence that reasonable steps were undertaken to notify relevant custodians of preservation obligations
shall be prima facie evidence of compliance with obligations under such discovery requests or preservation orders."
EXPLANATION & BACKGROUND
FOR PROPOSAL
Back-up Tapes, Best Practices and Rule Amendments
Thomas Y. Allman
July 21, 2002
Introduction
No real disagreement exists about the duty to preserve and produce active electronic records that are available
in the ordinary course of doing business. However, due to some unique aspects of the electronic - as opposed to
hard copy - documentation process, tough issues remain for the corporate planner faced with predicting the outer
limits of those responsibilities in specific cases. In the past year, since I first proposed a specific Rule amendment
on the topic, some key lower court decisions have helped illustrate the issues. Despite the amount of ink spilled
by commentators on the topic, no court has yet ruled that "backup tapes" for corporate e-mail systems
must always be restored, searched and routinely produced . As Magistrate Judge Facciola noted in the landmark case
of McPeek v. Ashcroft, "[t]here is certainly no controlling authority for the proposition that restoring all
backup tapes is necessary in every case. The Federal Rules of Civil Procedure do not require such a search, and
the handful of cases are idiosyncratic and provide little guidance." 202 F.R.D. 31, 33 (D. D.C. 2001). In
an earlier case, Concord Boat Corp. v. Brunswick Corp., only recently reported, Judge Moody had rejected the proposition
that an absolute duty of preservation of back-up tapes existed because "to hold that a corporation is under
a duty to preserve all e-mail potentially relevant to any future litigation would be tantamount to holding that
the corporation must preserve all e-mail." 1997 WL 33352759, *4 (E.D. Ark. August 29, 1997). The reason, as
two recent decisions remind us, is that backup tapes are not created for record retrieval purposes but rather to
allow for systems reconstruction in the case of disasters. Thus, in Rowe Entertainment, Inc., et al. v. The William
Morris Agency, Inc., et al., 2002 WL 975713, *7 (S.D. N.Y. May 9, 2002), Judge Patterson held that "[a] party
that happens to retain data only in case of emergency or simply because it has neglected to discard it, should
not be put to the expense of producing it." Judge Patterson quoted with approval the Magistrate Judge's earlier
conclusion that requiring a producing party in discovery to seek deleted e-mails from a hard drive is no more required
than requiring a party "to sort through its trash to resurrect discarded paper documents." Id. (quoting
Rowe, 205 F.R.D. 421, 431 (S.D. N.Y. 2002)). See also Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439,
*2-*8 (E. D. La February 19, 2002) (applying Rowe to require production of e-mail at requesting party's expense).
The premise of Rowe and Murphy Oil is that the marginal utility of such restoration efforts is low when balanced
against the disruption required to make that effort. I would argue that these cases also support a related principle
that there is ordinarily no duty to sequester backup tapes where reasonable steps are taken to timely notify affected
users of computer equipment to segregate and save relevant electronic materials. This principle is based on the
recognition that back-up systems do not serve as some substitute for records retention systems and are not used
as such. See In re: General Instrument Corporation Securities Litigation, 1999 WL 1072507, *5-*6 (N.D. Ill. Nov.
18, 1999) (counsel must read each e-mail, assess if it is responsive, and then determine if it contains privileged
information). If a requesting party seeks to alter this formulation, it should affirmatively negotiate for or seek
an order directed at the preservation of backup tapes. Moreover, absent a specific order or a showing of specific
need, no request for preservation of backup tapes should be granted until and unless a showing of a "particularized
likelihood of discovering appropriate information" is made. Fennell v. First Step Designs, Ltd., 83 F.3d 526,
532 (1st Cir. 1996).
As Judge Moody noted in Concord Boat, while refusing to enter sanctions for failure to preserve e-mail prior to
issuance of a preservation order:
Any corporation the size of [Brunswick] (or even much smaller) is going to be frequently involved in numerous types of litigation. Whether it be patent, trademark, labor or antitrust suits, the threat of litigation is ever present for large, successful corporations. Arguably, most e-mails, excluding purely personal communications, could fall under the umbrella of "relevant to potential future litigation." For example, the e-mail could contain "stray remarks" which would have a bearing on some legal issue. Thus it would be necessary for a corporation to basically maintain all of its e-mail. Such a proposition is not justified.
1997 WL 33352759 at *4.
A topic of this nature lends itself particularly well to discussion among counsel and, where appropriate, motion
practice.
Cost Shifting
Where an adequate demonstration of the need for extraordinary efforts to preserve, restore and search backup
tapes or hard drives is made, shifting of costs to the requesting party under Rule 26(c) and Rule 26(b)(2)(iii)
often is the appropriate response. In Rowe, supra, the Court analyzed eight factors in the course of deciding that
the requesting party should pay for the costs of restoration and production of the e-mail from backup tapes:
· Overbroad discovery requests
· Lack of evidence that the search would yield relevant information
· Availability of the information elsewhere
· Retention of the data by the responding parties only for purposes of emergency or only through neglect
of normal policy to discard
· Lack of useful benefit from the production to responding party
· Total cost of the propounded discovery
· Requesting party's control over volume of follow-up requests
· Relative financial strength
Although none of the Judges in Rowe or in Murphy Oil, supra, cited the Texas electronic discovery rule, the results
in both cases came very close to the approach there adopted. Under the Texas procedure, cost shifting to the requesting
party is required if production is ordered of material not readily available through reasonable efforts. See Tex.
R. Civ. P. 196.4. I have argued that this principle should also be explicitly embodied in an amendment to Rule
34 (see below).
Corporate Retention Practices
A corporate planner facing the challenges of e-discovery needs to take a carefully integrated approach to document
retention and litigation policy involving reconciliation of both IT and business needs. In Rowe, supra, the Magistrate
Judge noted that defendants "have not alleged that they had any corporate policy" on the topic of what
e-mail should be reduced to hard copy. 205 F.R.D. at 428. Similarly, the Magistrate Judge had noted that there
was "no evidence that the defendants themselves ever search these [backup] tapes for information or even have
a means for doing so." Id. at 431. This emphasizes the importance of undertaking the following:
· Establish, by a formal policy, that each corporate employee has responsibility to manage business records
- no matter what form they take - created or maintained by him or her in the ordinary course of business - and
make each individual aware that those responsibilities include retaining records of business activity.
· Work with individual business units to help them establish practices and customs tailored to the needs
of their businesses, to identify the business records they wish to retain.
· Develop presumptive limits on retention of e-mails that are not to be retained as business records, and
develop communications policies that promote the appropriate use of the e-mail and other company-owned systems.
· Eliminate unnecessary retention of backup tapes, and ensure that routine access to them is not granted
for purposes other than crisis reconstruction.
· Implement appropriate procedures to identify and notify individuals and units of the need to preserve
electronic and other records needed for pending or threatened litigation.
· Publicize policies and procedures regarding preservation of potential evidence in the case of threatened
litigation, and train lawyers and business people on when and how to carry out their responsibilities.
Amendments to Federal and State Rules
While the Rowe and Murphy Oil cases masterfully apply the principle of cost shifting to the facts before them, and support the helpful development of the law of e-discovery, it would also be helpful for federal and state discovery Rules to spell out the basic underlying principles. In particular, these principles are needed to help establish uniform systems applicable to all cases, not just the "big" case. For example, the Rules should clarify that sanctions for the non-production of electronic information are inappropriate in the absence of certain conditions. This would enable a more comprehensive approach and would ultimately help secure information for use in litigation, as is properly the object of the Rules. Such a provision could be included as part of Federal Rules 26 or 34 and their state counterparts, as follows: