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The Advisory Committee on Civil Rules has proposed various rule changes to address the issue of electronic discovery. The most controversial provisions of the proposed changes, which could go into effect December 1, 2006, include a two-tier discovery process, a "safe harbor" for routine destruction, and a "claw back" provision with respect to the inadvertent production of privileged materials. In a series of hearings earlier this year, representatives of Fortune 500 companies and various attorneys, including many ATLA members, testified or submitted written comments to the Advisory Committee. The committee will now begin the process of synthesizing the comments and suggesting any refinements to the Standing Committee, which may vote to approve the amendments send them to the Judicial Conference. If passed by the Judicial Conference, they would go to the Supreme Court, and then finally to Congress. The pertinent changes proposed by the Advisory Committee are as follows:

Proposed Changes Relating to the Discoverability of Electronically Stored Data

Rule 34.
...
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect, and copy, test, or sample any designated electronically stored information or any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images phonecords, and other data or data compilations in any medium – from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)...

(b) Procedure. The request shall set forth, either by individual item or by category, the items to be inspected and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making inspection and performing the related acts. The request may specify the form in which electronically stored information is to be produced....

The party upon whom the request is served shall serve a written response within 30 days... The response shall state, with respect tp each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form for producing electronically stored information, stating the reasons for the objection...
Unless the parties otherwise agree, or the court otherwise orders,
(i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; and
(ii) if a request for electronically stored information does not specify the form of production, a responding party must produce the information in a form in which it is ordinarily maintained, or in an electronically searchable form. The party need only produce such information in one form.

Similarly, Rule 45 regarding subpoenas would be clarified to expressly include "electronically stored information" and Rule 33 would be amended to make it clear that a party answering an interrogatory could point to "electronically stored information" under the business records provisions of Rule 33(d).

Proposed Changes Relating to Meet & Confer Requirements

Rule 16.
...
(b) Scheduling and Planning. Except in categories of actions exempted by district court
rule as inappropriate, the district judge, or a magistrate judge when authorized by the district
court rule, shall, after receiving the report from the parties under Rule 26(f) or after
consulting with the attorneys for the parties and any unrepresented parties by a scheduling
conference, telephone, mail, or other suitable means, entering a scheduling order that limits
the time
(3) to join other parties and amend the pleadings
(4) to file motions; and
(5) to complete discovery.
The scheduling order may also include
(6) modifications of the times for disclosures...
(7) provisions for disclosure or discovery of electronically stored information;
(8) adoption of the parties' agreement for protection against waiving privilege;
(9) the date or dates for conferences before trial....

Rule 26.
...
(f) Conference of Parties; Planing for Discovery. Except in categories of proceedings exempted from initial disclosure..., the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities of a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties' views and proposals concerning:
...
(3) any issues relating to disclosure or discovery of electronically stored information, including the form in which it should be produced;
(4) whether, on agreement of the parties, the court should enter an order protecting the right to assert privilege after the production of privileged information;
(5) what changes should be made in the limitations on discovery...

Form 35, relating to the parties' planning meeting would be similarly amended to set forth proposals for the disclosure or discovery of electronically stored information as well as any agreements with respect to the treatment of privileged materials.

Proposed Changes Establishing a Two-Tiered Discovery Process (and Apparent Shifting of the Burden to Requesting Party to Demonstrate "Good Cause" for the Production of "Inaccessible Data")

Rule 26.
...
(b) Discovery Scope and Limits.
...
(2) Limitations.... A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible. On motion by the requesting party, the responding party must show that the information is not reasonably accessible. If that showing is made, the court may order discovery of the information for good cause and may specify terms and conditions for such discovery.

Rule 45 relating to subpoenas would be modified with a nearly identical provision.

Proposed "Safe Harbor" for Routine Destruction of Electronically Stored Information

Rule 37.
...
(f) Electronically stored information. Unless a party violated an order in the action requiring it to preserve electronically stored information, a court may not impose sanctions under these rules on the party for failing to provide such information if
(1) the party took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action; and
(2) the failure resulted from loss of the information because of the routine operation of the party's electronic information system.

Proposed Changes Regarding Privilege and Waiver.

Rule 26.
...
(b) Discovery Scope and Limits.
...
(5) Claims of Privilege or Protection of Trial Preparation Materials.
(A) Privileged information withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly...
(B) Privileged information produced. When a party produces information without intending to waive a claim or privilege it may, within a reasonable time, notify any party that received the information of its claim of privilege. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies. The producing party must comply with Rule 26(b)(5)(A) with regard to the information and preserve it pending a ruling by the court.

Rule 45 relating to subpoenas would be amended with a similar provision.

Challenges to the Proposals

Jim Rooks from ATLA's Center for Constitutional Litigation spearheaded an effort to challenge the proposals along with Litigation Group Chair Mike Ryan, Gerson Smoger, Keith Altman, Paul Bland from TLPJ, and others whom I'm sure I am (and apologize for) forgetting.

One focus of attack has been that the changes are unnecessary from a technological point of view. Haven't the courts been equipped to effectively manage electronic discovery issues as they have arisen? Isn't technology advancing too rapidly for the rules process to accommodate, or anticipate, the problems, and solutions, that are sure to surface? Mike Ryan notes that what is difficult and costly to retrieve today might be easily and efficiently searched and produced within just a few years. Determining what is "accessible" and "inaccessible" – or, more appropriately, what is "unduly burdensome" – is an inherently factual inquiry, which should be determined by the courts on a case-by-case basis, rather than by a committee, working in a vacuum, based on technology that exists, (or is perceived to exist), at a fixed point in time. Gerson Smoger makes the point that the proposed changes attempt to resolve situations that actually arise fairly infrequently; exceptions should not drive the process for all cases.

The second focus of attack has revolved around the burdens on litigants and the courts presented by two-tier discovery process, which results in motion practice any time a party desires to withhold information simply by claiming that it is "inaccessible". The Federal Magistrate Judges Association, in its written comments to the Advisory Committee, opined that the shifting of the burden of persuasion to the requesting party with respect to issue of "good cause" would lead to more, not fewer, discovery disputes. The FMJA further indicated that "the proposed amendment places too much control in the hands of the responding party in that it may encourage parties who believe that they might be sued to make some electronically stored information inaccessible as rapidly as possible."

Which leads to the "safe harbor" provision, addressed extensively in the author's written comments to the Advisory Committee, which, for your reference, are attached.

Finally, the proposed changes have been attacked on the "claw back" provision which seems to apply to traditional paper as well as electronic discovery, (allowing the producing party to re-claim privilege over materials which have "inadvertently" been produced). In some cases, such an accommodation might be an appropriate way to facilitate a large production in a short period of time. However, the blanket availability of a "claw back" in all cases would, as a practical matter, substantially interfere with the operation and utility of litigation groups, joint-prosecution agreements, or other cooperative arrangements which can substantially reduce litigation costs and put plaintiffs on an equal playing field. Such a rule would also seem to interfere with state law on privilege and waiver, raising concern under the Rules Enabling Act, the Erie Doctrine, and Code of Evidence Article 501 in diversity cases.