69 The Alabama Lawyer 106 (2008). Discovery of Electronically Stored Information - Potential Alabama Civil Procedure Rules.

• Author: BY GEORGE M. DENT, III

The Alabama Lawyer

2008.

69 The Alabama Lawyer 106 (2008).

Discovery of Electronically Stored Information - Potential Alabama Civil Procedure Rules

Discovery of Electronically Stored Information - Potential Alabama Civil Procedure RulesBY GEORGE M. DENT, III The Federal Rules of Civil Procedure were amended in 2006 to address discovery of electronically stored information ("ESI").(fn1) The Standing Committee on the Alabama Rules of Civil Procedure is considering whether to propose similar amendments to the Supreme Court of Alabama for adoption into the Alabama Rules of Civil Procedure. The committee would be pleased to receive comments from Alabama lawyers regarding the desirability, form and substance of any such proposed amendments.

Judge John L. Carroll, dean and Ethel P. Malugen Professor of Law at Cumberland School of Law, served as the reporter to the Drafting Committee of the National Conference of Commissioners of Uniform State Laws which drafted Uniform Rules Relating to the Discovery of Electronically Stored Information (the "URRDESI") for use by the states. The Conference approved the URRDESI in July 2007. Those rules can be found on the NCCUSL Web site.(fn2) The question before the Alabama Civil Rules Committee, therefore, appears to be whether to propose amendments similar to the amendments to the federal rules, amendments along the lines of the URRDESI or something else.

The Supreme Court of Alabama, in an opinion by Chief Justice Cobb, has noted that "neither the courts of this state nor the legislature has developed standards for [discovery of] information available on electronic media." Ex parte Cooper Tire & Rubber Co.(fn3) In the Cooper opinion, the court granted a mandamus petition in part and provided guidance for the circuit court regarding its consideration as to "whether the discovery of ESI is unduly burdensome."(fn4) This guidance should similarly inform the Civil Rules Committee and any Alabama attorneys who wish to submit comments regarding potential amendments to the Alabama Rules of Civil Procedure.

The significant provisions in the federal rules include: * Rule 26(b)(2)(B), regarding an assertion that ESI is "not reasonably accessible;" * Rule 26(b)(5)(B), the "clawback" provision that allows a producing party to raise a claim of privilege even after having produced the material (not just...