Appendix C
| Jurisdiction | Washington |
APPENDIX C
ELECTRONIC DISCOVERY (E-DISCOVERY)
Todd L. Nunn
Bree Kelly
Chapter Details
Summary| §C.l | Introduction | ||||||||||||||
| §C.2 | Rules to Remember
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| §C.3 | Cooperation | ||||||||||||||
| §C.4 | Proportionality
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| §C.5 | Preservation
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| §C.6 | Collection | ||||||||||||||
| §C.7 | Processing
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| §C.8 | Review | ||||||||||||||
| §C.9 | Production | ||||||||||||||
| §C.10 | Privilege & Electronic Discovery
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See Chapter 34 for Todd L. Nunn's and Bree Kelly's biographical information.
§C.1INTRODUCTION
In 2006, the Federal Rules of Civil Procedure were amended to include consideration of the discovery of electronically stored information (ESI). Constituting a major change in the discovery paradigm, the amendments expanded the previously paper-centric focus of discovery to recognize the dominance of technology in modern life and its inevitable role in litigation.
Since 2006, many states, including Washington, have also adopted rules addressing electronic discovery. In 2013, for example, CR 34 was amended to account for discovery of ESI and to address the proper procedure for determining an acceptable format of production. Other than CR 34 and CR 26(b)(6), Washington has not adopted the other 2006 federal rule amendments specifically addressing the discovery of ESI (although ER 502 was adopted in 2010 to mirror the 2008 adoption of Fed. R. Evid. 502, which was closely related to the 2006 amendments to the federal civil rules).
In addition to the rules themselves, there are two important principles that should always be kept in mind when thinking about electronic discovery: cooperation and proportionality. Since the adoption of federal rules addressing electronic discovery in 2006, experience has shown that cooperation is a valuable tool for reducing the burdens and costs associated with electronic discovery. Similarly, the principle of proportionality, when properly invoked, can help to appropriately limit a party's discovery obligations and to ensure that the discovery efforts that are undertaken are "worth it" in light of the circumstances of each case. These principles will be discussed in greater detail below.
Finally, before turning in earnest to the nuts and bolts of electronic discovery, it must be acknowledged that there is a noticeable dearth of Washington case law addressing many of the relevant issues that will be discussed. Thus, in many instances, the issues will be illustrated by federal case law, which has been substantially developed in the area of electronic discovery. These cases may be particularly useful to the extent that they discuss a federal rule for which there is a state counterpart (e.g., CR 26(b)(l)(A)-(C), CR 26(b)(6), CR 26(g), CR 34, and ER 502). See Beal v. City of Seattle, 134 Wn.2d 769, 777, 954 P.2d 237 (1998) ("Where a state rule parallels a federal rule, analysis of the federal rule may be looked to for guidance, though such analysis will be followed only if the reasoning is found to be persuasive."). The advisory committee notes to the relevant 2006 amendments to the Federal Rules of Civil Procedure are also quite illuminating and may be referenced for additional guidance when the federal and state rules are substantially similar.
§C.2RULES TO REMEMBER
Although only CR 34 specifically addresses the discovery of ESI, the following is a discussion of additional rules (and CR 34) that should also be considered in cases involving electronic discovery.
(1) CR 26—general provisions governing discovery
There are several provisions in CR 26 that may be relevant in the context of electronic discovery.
(a)CR 26(b)(1)—discovery scope and limits; in general
CR 26(b)( 1)(A)-(C) can be useful for addressing disputes related to the proper scope of electronic discovery. CR 26(b)(1) states that discovery shall be limited by the court if it determines that the discovery sought is "unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;" if it determines that "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought;" or if it determines that "the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties 'resources, and the importance of the issues at stake in the litigation." This consideration of the costs and benefits of proposed discovery has come to be known as proportionality. Parties may invoke proportionality to oppose requested discovery by bringing a motion for a protective order pursuant to CR 26(c).
Parties on both sides of an action should consider the constraints of this rule when crafting requests for or responses to discovery and should be prepared to support their positions with specific information when negotiating with opposing counsel or presenting their positions to the court. See, e.g., Ross v. Abercrombie & Fitch Co., Nos. 2:05-cv-0819, 2:05-cv-0848, 2:05-cv-0879, 2:05-cv-0893, 2:05-cv-0913, 2:05-cv-0959,2010 WL 1957802, at *3 (S.D. Ohio May 14,2010) ("The party claiming that discovery is burdensome does have an obligation to make that claim with specificity").
(b)CR 26(c)—protective orders
Although a protracted discussion of this rule is beyond the scope of this appendix, it should be noted that a motion for a protective order is the appropriate method for seeking limitations on discovery (which may be based on CR 26(b)(l)(A)-(C), as discussed above). Indeed, the rule specifies that "for good cause shown," a court may "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...." CR 26(c).
(c)CR 26(f)—discovery conference
CR 26(f) does not directly address the discovery of ESI. Nonetheless, the provisions therein may be relevant in the context of electronic discovery and can be useful if properly invoked. First, it gives the court authority to oversee discovery in a proactive way, stating: "[a]t any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery." CR 26(f). Second, it gives the parties the power to proactively manage discovery, stating: "[e]ach party and his attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party." Id. Third, it gives the parties the power to compel the court to be proactive in managing discovery, stating: "[t]he court shall [hold a discovery conference] upon motion by the attorney for any party ...." Id. The motion must include the following:
(1)A statement of the issues as they then appear;
(2)A proposed plan and schedule of discovery;
(3)Any limitations proposed to be placed on discovery;
(4)Any other proposed orders with respect to discovery; and
(5)Astatement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion.
Id.
Following the discovery conference, the court "shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any, and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action." Id. The utility of this rule lies in its mandatory nature once invoked. On the one hand, there is no requirement that its provisions be used at all, unlike the federal rule, which is mandatory. On the other hand, once its provisions are invoked by any party, all other parties or the court must take action.
In short, if a party anticipates that issues relating to e-discovery will arise in a case, this rule gives that party the ability to force the opposing party and the court to address these issues. It is a potent tool that is likely not used nearly enough.
(2)CR 34—producing documents, electronicallystored information, and things or entry onto land for inspection and other purposes
In 2013, CR 34 was amended to address the discovery of ESI and provides specific guidance regarding how to establish the appropriate form or forms for its production.
Per CR 34(a)(1), a party may request the production of any ESI in the responding party's "possession, custody, or control" and, pursuant to CR 34(b)(2)(C), "may specify the form or forms in which electronically stored information is to be produced." The responding party need not accept the form of production specified by the requesting party, however. Rather, upon receipt of such a request, the responding party may object to the requested form of production and state the form or forms it intends to use. CR 34(b)(3)(D). A responding party must also state the form of production it intends to use when no form was specifically requested. Id.
Absent court order or stipulation of the parties, ESI must be produced as it is "kept in the usual course of business" or organized and labeled to correspond to the categories in the request. CR 34(b)(3)(F)(i). When no...
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