Proposed Electronic Discovery Rule Amendments

1. Proposed Electronic Discovery Rule Amendments Eastern District of Texas District Meeting 2005 Fifth Circuit Judicial Conference Michael C. Smith online at Eastern District of Texas Federal Court Practice web log, http://mcsmith.blogs.com

2. Background • The Judicial Conference Committee on Rules of Practice and Procedure approved proposed amendments to FRCPs 16, 26, 33, 34, 37 & 45 to address electronic discovery. • On April 14-15, 2005, the Civil Rules Advisory Committee met and, taking into consideration feedback received during the public comment period, approved amendments to FRCPs 16, 26, 33, 34, 45, and “in principle,” to Rule 37.

3. If approved by the Judicial Conference and the Supreme Court, and not blocked by Congress, they will take effect on December 1, 2006. • For additional information, including the proposed amendments, public comment, and transcripts of the public hearings, see: http://www.uscourts.gov/rules/proposed0205.html

4. Subjects of e-discovery rule amendments • Early attention to electronic discovery issues, including form of production, preservation of electronically stored information (ESI), and review of such information for privilege; • discovery of ESI that is not reasonably accessible; • assertion of privilege after production; • application of Rules 33 and 34 to ESI; and • Limit on sanctions under Rule 37 for the loss of ESI as a result of the routine operation of computer systems.

5. FRCP 16/26 – Meet & confer requirements • Parties must discuss in the Rule 26(f) conference any issues relating to the disclosure and discovery of ESI, including (1) the form of production, (2) preservation of ESI, and (3) whether the parties can agree to production of ESI on terms that protect against privilege waiver. • Scheduling order may include provisions on ESI. • New language will be added to the Committee Note that encourages discussion of preservation issues, but takes no position on issuance of preservation orders.

6. FRCP 26(a)(1)(B) – Initial disclosures • The phrase "electronically stored information" (ESI) was added to the disclosure requirement to align with the amendment to the definition of document.

7. FRCP 26(b)(2)(B) –Two tiers for ESI discovery • A party need not provide discovery of ESI that the party identifies as not reasonably accessiblebecause of undue burden or cost. • On motion to compel discovery, the party from whom discovery is sought must showthat the information is not reasonably accessible because of undue burden or cost. • Court may still order discovery from such sources if the requesting party shows “good cause,” considering the limitations of Rule 26(b)(2)(c), and may specify conditions for such discovery. • Revised Note will reference cost allocation.

8. FRCP 26(b)(5) – Inadvertent Waiver • When information is produced subject to a claim of privilege, the producing party may, within a reasonable time, notify any party that received the information of the claim and the basis for it. • After being notified, the receiving party must promptly return/destroy the specified information (or file it under seal) and may not use or disclose it until the privilege claim is resolved. • If the receiving party already disclosed the information before being notified, it must take reasonable steps to retrieve it.

9. FRCP 33 - Interrogatories • An answer to an interrogatory involving review of business records should involve a search of electronically stored information • An answer may permit the responding party to answer by providing access to that information.

10. FRCP 34 – Document Production • ESI changed to a separate category. • After comments, the default option for form of production was revised from "...production in a form in which it is ordinarily maintained or in an electronically searchable form" to "in a form or forms that are reasonably usable by the requesting party or in which it is ordinarily maintained."

11. FRCP 37(f) – Safe harbor • Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI deleted or lost as a result of the routine, good faith operation of the party's electronic information systems. • There is a debate whether this section will stay with the rest of the proposals. The Committee Note will be substantially revised to conform to the new Rule over the next few weeks.

12. Dropped from the original version are the requirements that to take advantage of the safe harbor, the producing party must • “[take] reasonable steps to preserve the information after it knew or should have known the information was discoverable” and • “not have violated any court order requiring it to preserve electronically stored information.” • Issue whether the standard of culpability for under Rule 37(f) is the negligence standard in the published draft, or a higher standard, requiring intentional or willful conduct.