§26.4 Comparison with Federal Rule

• Jurisdiction: Washington

§26.4 COMPARISON WITH FEDERAL RULE

FED. R. CIV. P. 26 has undergone significant substantive changes beginning with amendments in 1993. Most of these federal rule changes have not been adopted in Washington. Unlike CR 26, the federal rule requires parties to exchange discovery without the need for formal discovery requests. FED. R. CIV. P. 26 requires voluntary disclosure of fact witnesses, documents that maybe relied upon by the party, and trial expert reports. The federal rules impose an obligation to supplement disclosures during pending litigation, with the sanction of automatic exclusion or prohibiting a party from using at trial information it failed to voluntarily disclose, including failure to supplement discovery responses. FED. R. CIV. P. 26 also addresses discovery of electronically stored information (ESI), i.e., computer and digital data and information. The federal rule requires automatic disclosures and reports of trial experts and fact experts, and includes an attorney-expert work product privilege protecting draft reports and other communications between experts and lawyers.

In 2007, Fed. R. Civ. P. 26 and other rules governing discovery underwent a rewrite, described as "the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules." Fed. R. Civ. P. 26, Committee Notes on Rules—2007 Amendment. As a result, CR 26 reads differently than its federal counterpart, both in terms of the language used and how sections and their subject matter are numbered and organized.

(1)Scope of discovery; limits under the federal rules

FED. R. CIV. P. 26(b) limits the scope of discovery more narrowly than CR 26(b). In federal court, discovery is limited to nonprivileged matters that are relevant to the claim or defense of any party, and may include requesting the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and contact information of any person who knows of any discoverable matter. Information that could be used to impeach a likely witness, even though not otherwise relevant to the claims or defenses asserted by the parties, is properly discoverable. FED. R. CIV. P. 26, Committee Notes on Rules—2000 Amendment, Subdivision (b)(1).

The federal limits on the scope of discovery are intended to direct the parties and the court to focus on the actual claims and defenses involved in the action. Whether discovery is aimed at claims and defenses, not the broader subject matter involved in the action, will likely result in discovery disputes and judicial interpretation. The advisory committee's note on this amendment provides little help, stating: "The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be denned with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action." Id. Parties are not entitled to discovery for the purpose of developing new claims or defenses that are not already identified in the pleadings. Discovery will only be broadened when demanded by the reasonable needs of the action. See Hill v. Motel 6, 205 F.R.D. 490 (S.D. Ohio 2001).

FED. R. CIV. P. 26(b)(1) creates two levels of discovery: lawyer-controlled discovery, which is dictated by the pleadings, and court-authorized discovery, which will allow a party to go beyond the pleadings into other subject matter, but only upon a motion establishing good cause, and the district court's consideration of factors described in FED. R. CIV. P. 26(b)(2)(C).

(a)Discovery of electronically stored information

The federal rules define the term "documents." Under Fed. R. Civ. P. 34, documents include, among other things, "electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form." Fed. R. Civ. P. 34(a)(1)(A).

FED. R. CIV. P. 26(b) incorporates the same broad meaning as under FED. R. CIV. P. 34 and encompasses ESI, including images and data compilations.

The federal rules now address two important issues arising from the common use of e-mail as a primary form of communication and the routine creation and storage of digital information in the business and personal world: (1) the preservation of ESI once litigation is reasonably anticipated and (2) the management of the significant costs that can arise with ESI discovery, including which party or parties should principally bear that expense.

CR 34 was amended effective August 20, 2013, primarily to address discovery of ESI. Before the 2013 amendment, CR 34 did allow discovery of ESI, but did not address the form of providing of ESI to the requesting party. The rule changes focus on the format in which ESI is to be provided:

(1)CR 34 now allows the requesting party to designate the form or forms in which it wants ESI to be produced.

(2)In its response, the responding party may state an objection to the requested form for producing the ESI. The responding party must state with its objection the alternative form or forms it intends to use in producing the ESI.

(3)If the requesting party does not specify aformfor production of ESI, the responding party must state which of the following form or forms it will use: the form in which ESI is ordinarily maintained by the responding party, or in a reasonably useable form or format.

(4)Unless otherwise stipulated by the parties or ordered by the court, upon a showing of good cause, a responding party need not produce the same ESI in more than one form.

(5)The amendments to CR 34 also make clear how ESI must be organized at the time of production. ESI must be produced as kept in the responding party's ordinary course of business, or organized and labeled to correspond with the categories in the requests.

For further discussion, see Chapter 34.(Rule 34. Producing Documents, Electronically Stored Information, and Things or Entry Onto Land For Inspection and Other Purposes) and Appendix c. (E-Discovery) of this deskbook.

(b)The court's management of the scope of discovery

In general

Expanding the scope of discovery beyond that allowed by Fed. R. CIV. P. 26(b)(1) requires a court order. The rule provides that "for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." The advisory committee's note to rule 26(b)(1) explains that the rule is intended to involve the court more actively in regulating the breadth of "sweeping or contentious discovery." Fed. R. Civ. P. 26, Committee Notes on Rules—2000 Amendment, Subdivision (b)(1).

If a discovery request strays beyond an area "relevant to a claim or defense," Fed. R. Civ. P. 26(b)(1) requires a showing of good cause. For good cause shown, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

All discovery is subject to limits per Fed. R. Civ. P. 26(b)(2)(C). Fed. R. Civ. P. 26, Committee Notes on Rules—2006 Amendment, Subdivision (b)(2).The good cause provision to expand the scope of discovery authorized by Fed. R. Civ. P. 26(b)(1) and Fed. R. Civ. P. 26(b)(2)(C) authorizes the district court to impose conditions for discovery. In addition to limiting the amount or type of information a party may be allowed access to or be required to produce, the court may impose upon the requesting party the expense of obtaining the discovery if it is not readily accessible. The requesting party's willingness up front to bear or share the access cost can be a consideration in determining good cause. The court may also find that the burden imposed upon the producing party to review voluminous information for both relevance and privilege may weigh against allowing the additional discovery.

Court management of ESI

To address its potential high cost, Fed. R. Civ. P. 26(b)(2)(B) imposes specific limits on ESI discovery, requiring parties to only search and produce ESI from "reasonably accessible sources." However, the producing party must also identify, disclose, and describe other sources of ESI not "reasonably accessible" due to undue burden or cost. Effectively the rule creates two levels of ESI for discovery purposes: Level 1, "reasonably accessible data," and Level 2, "not reasonably accessible" data. The fact that a producing party identifies Level 2 ESI does not relieve that party from its duty to preserve "not reasonably accessible" ESI.

The advisory committee did not provide much guidance as to what qualifies as not reasonably accessible data, other than stating that production of such data involves greater burdens and costs in providing the discovery, and whether there is a likelihood of finding responsive information in Level 2 sources.

The advisory committee's comments identify numerous factors a district court is to consider in determining whether the party seeking discovery of Level 2 ESI has shown good cause to establish that "not reasonably accessible data" should nonetheless be discoverable:

(1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the...