71 The Alabama Lawyer 206 (2010). A Primer on the New Electronic Discovery Provisions in the Alabama Rules of Civil Procedure.

• Author: by J. Paul Zimmerman

Alabama Lawyer

2010.

71 The Alabama Lawyer 206 (2010).

A Primer on the New Electronic Discovery Provisions in the Alabama Rules of Civil Procedure

A Primer on the New Electronic Discovery Provisions in the Alabama Rules of Civil Procedureby J. Paul ZimmermanEffective February 1, 2010, the Alabama Rules of Civil Procedure were amended to provide for and accommodate electronic discovery practice. The revisions are modeled on the Federal Rules of Civil Procedure, placing Alabama in the majority of the roughly 24 states (as of this writing) that have followed the federal regimen in adopting such rules. The revisions affect Ala. R. Civ. P. 16, 26, 33, 34, 37 and 45, and a link to the revised rules and committee comments can be found at www.judicial.state.al.us.cfm. The fact that these revisions are based upon the federal model should come as no surprise in light of Alabama's handful of electronic discovery cases such as Ex parte Cooper Tire and Rubber Co., 987 So. 2d 1090 (Ala. 2007).

Whether you view these revisions as a door being held open for you or the breach of a door you have wanted held shut, these changes will affect nearly all civil practitioners, even those who never turn on a computer or intend to seek electronically stored information ("ESI") during discovery. See, e.g., Ala. R. Civ. P. 45. This article is intended to summarize the changes in the rules, largely through reference to the committee comments, and will point out the significant variations from the federal rules. Though Rule 26 contains the heart of the electronic discovery provisions, this article will introduce the changes in the order in which they are likely to be encountered during litigation.

Preservation of Electronically Stored Information

The advent of electronic discovery did not create the concept of spoliation, which existed under the common law. See May v. Moore, 424 So. 2d 596, 603 (Ala. 1982). However, preserving ESI is more complicated than simply advising the client not to shred or dispose of documents pertinent to the lawsuit. The primary distinction between ESI and information stored in hardcopy is the fragility of ESI-metadata can be destroyed or altered by simply turning on a computer or opening a document for viewing. See Cont'l Group, Inc. v. KW Prop. Mgmt., LLC, 622 F. Supp. 2d 1357, 1373 (S.D. Fla. 2009) (discussing an employee's inadvertent alteration of metadata by accessing computer files after being on notice of impending litigation). Therefore, while many principles regarding electronic discovery are not significantly different from the age-old paper discovery, the consequences of failing to meet the burden to preserve evidence can be substantial.

The rules do not demand perfect steps to preserve digital evidence. Only reasonable steps are required, as seen by the "safe harbor" of Alabama Rules of Civil Procedure37(g): "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." In other words, if information is lost pursuant to the party's regular document maintenance and destruction process, such a loss is generally not sanctionable if the loss of evidence is in good faith. Examples of sanctionable and non-sanctionable loss of data, respectively, can be seen in Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D. N.Y. 2004) and Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390 (S.D. Fla. Nov. 18, 2009). However, once litigation is anticipated, a party must generally disrupt its regular document destruction routine to receive the protection of the safe harbor provision Ala R. Civ. P. 37(g). See Committee Comments to Adoption of Ala R. Civ. P. 37(g).

Although Rule 37(g) is identical to its federal counterpart, it may end up being interpreted quite differently. The committee comments contain a statement that strays from traditional spoliation jurisprudence. "Good faith...