E-discovery help may be on the way ... sort of: Civil Rules Advisory Committee proposal: the amendments address several issues, including inaccessible documents, privileged documents, third-party subpoenas and a sanctions safe harbor.

• Author: Barkett, John M.

RULE 1 of the Federal Rules of Civil Procedure contains the noble goal that the civil rules should foster the "just, speedy, and inexpensive" determination of every action. When Rule 1 was drafted, personal computers were the vision of sci-fi flick directors. E-discovery was absent from the lexicon of litigators. Today, personal computers are ubiquitous; metadata are metastasizing; and in a growing number of cases, e-discovery is eviscerating Rule 1. (1) In response, the Civil Rules Advisory Committee of the Committee on Rules of Practice and Procedure of the U.S. Judicial Conference has proposed changes to a number of the civil procedure discovery rules. The proposals have been promulgated for public comment until February 15, 2005. Any changes made to the civil rules would not go into effect until December 2006 at the earliest. (2) The changes are modestly ameliorative, will not eliminate cost-shifting debates, and will not provide sanctions protection to litigants who do not develop rigorous electronic document preservation programs.

THE PLACE TO START

In recognition of the importance of early attention to e-discovery issues, changes are proposed in Rules 26(f) and 16, the latter governing scheduling orders. Rule 26(f) requires parties to confer to consider the nature and basis of their claims and defenses, consider settlement, make or arrange for disclosures required by Rule 26(a)(1), and develop a discovery plan. The proposed amendment would add one more item to the litany of subjects to be considered during this conference: "to discuss any issues relating to preserving discoverable information."

Parties should recognize that the duty to preserve may arise long before the Rule 26(f) conference, as is illustrated by Zubulake v. UBS Warburg LLC. (3) It also should be obvious that counsel must comprehend their clients' electronic information systems beforehand to participate meaningfully in the Rule 26(f) conference.

If the amendments are adopted, the discovery plan contemplated by Rule 26(f) also will contain new paragraphs (3) and (4), which provide that the parties will state their views for the district court on e-discovery and privilege issues.

New paragraph (3) would include:

(3) any issues relating to disclosure or discovery of electronically stored information, (4) including the form in which it should be produced.

The form of production can be expected to be an issue as software and hardware change. For instance, in Byers v. Illinois State Police, (5) the producing party no longer had software to read backup tapes.

New paragraph (4) would provide:

(4) whether, on agreement of the parties, the court should enter an order protecting the right to assert privilege after production of privileged information.

In Rowe Entertainment Inc. v. William Morris Agency Inc., (6) the magistrate judge proposed a "clawback" so that the privilege could be asserted by the responding party after production and review of electronic documents by the requesting party.

Proceeding sequentially to the Rule 16 scheduling order, the proposed amendments would add new paragraphs (b)(5) and (b)(6) that would permit the order to include: "(5) provisions for disclosure or discovery of electronically stored information"; and "(6) adoption of the parties' agreement for protection against waiving privilege."

Lawyers that are not tackling the issue of electronic discovery when suit is reasonably anticipated run the risk of meaningful and potentially costly discovery conflicts when litigation is filed. Lawyers who have properly addressed e-discovery concerns immediately after filing, and pre-filing where necessary, will find these proposed changes welcome and advantageous.

ACCESSIBILITY AND COST SHIFTING

Cost shifting is not specifically addressed by the proposed rules, but Rule 26(b)(2), the focal point of the cost-shifting case law, would incorporates the "accessibility" concept from Zubulake I in establishing guidance for the district courts]

The district court in that case held that data that are (1) "online" or archived on current computer systems, such as hard drives; (2) "near-line," such as that stored on optical disks or magnetic tape stored in a robotic storage library from which records can be retrieved in two minutes or less, or (3) "off-line" but in storage or archives, such as removable optical disk or magnetic tape media, are readily accessible using standard search engines because the data are retained in machine readable format. On the other hand, (4) routine disaster recovery backup tapes that save information in compressed, sequential and non-indexed format, and (5) erased, fragmented or damaged data are generally inaccessible, because a time-consuming, expensive restoration process is required to obtain information. (8)

The proposed amendments add this to Rule 26(b)(2):

A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible. On motion by the requesting party, the responding party must show that the information is not reasonably accessible. If that showing is made, the court may order discovery of the information for good cause and may specify terms and conditions for such discovery. This proposal raises a number of issues. First, there is no definition for the term "reasonably accessible." (9) If desktop users cannot obtain the information without assistance, is that enough? Or is the "reasonable person" here the information systems technician who cannot obtain the information without assistance, or only with considerable expense? (10)

Parties who make the claim of inaccessibility are not obliged to produce anything but must be prepared to defend the claim. The proposed rule does not give any scope to the word "identifies." Is it enough to file a response simply stating that electronically stored information exists that is not reasonably accessible, or does the word "identifies" require details?

The spirit of the rules and the common understanding of the word "identifies" suggest that the respondent should provide enough detail about the electronically stored information so that an objective evaluation can be made of whether the information is "not reasonably accessible." (11)

The Advisory Committee Note emphasizes this point by stating: "The responding party must identify the information it is neither reviewing nor producing on this ground." However, if the responding party has actually accessed the requested information, the Advisory Committee adds that the responding party "may not rely on this rule as an excuse from providing discovery, even if it incurred substantial expense in accessing the information. (12)

This proposed change places the burden on the responding party to show that the information is not reasonably accessible "upon motion by the requesting party." Presumably the motion is one to compel, but whatever its caption, need the requesting party make any kind of showing, or does the mere filing of the motion trigger the duty of the responding party to establish inaccessibility? The Advisory Committee Note says that no trigger is required; merely filing a motion to compel requires the responding party to show that the requested information is not reasonably accessible.

This approach will likely lead responding parties to provide the bare minimum of detail required to "identify" the electronically stored information that was not reasonably accessible. Similarly, in the absence of much detail, if the requesting party went to the trouble of seeking electronically stored information in the first place, one would think that the triggering motion would be automatically filed to test the claim of inaccessibility.

If the producing party provided details up front, information supporting the claim of inaccessibility, then presumably the motion that would be filed would be one to compel, contesting the showing of inaccessibility and, in the alternative, seeking to establish "good cause" for an order to produce the information. In some cases, one would expect that depositions will take place to test the claim of inaccessibility. And where the stakes are high enough, experts will be employed to support each side's claims.

If the burden of demonstrating inaccessibility is not satisfied, absent other grounds, discovery will be ordered. If the showing is made, the proposed change permits the district court to order discovery of the electronically stored information if the requesting party shows "good cause." Good cause is not defined but logic would suggest, and the comment to the proposed rule provides, that good cause means that the benefit of the proposed discovery (13) outweighs the burden or expense of producing the information under Rule...