In the wake of the December 2006 amendments to the Federal Rules of Civil Procedure, the states are free to retain or amend their own electronic discovery rules as they see fit. This has led to a hodgepodge of approaches. For example:
- Some states, such as Minnesota, have effectively adopted the federal amendments. See Minn. R. Civ. Proc. 26.02(b)(2), 26.06, 34.01-02, 37.05.
- Other states have adopted only some of the amendments. For example, the New Jersey Court Rules, which contain some provisions lifted from the Federal Rules, do not contain amended Rule 26(f )fs requirement that parties confer regarding electronic discovery. See N.J. CT. R.1:9- 2, 4:18-1, and 4:23-6. New Hampshire, in contrast, amended its Superior Court Rules to be consistent with amended Rule 26(f ). See N.H. Sup. Ct. R. 62(I)(C).
- Several other states have drafted proposed amendments or enacted their own rules. Although New York state has not amended its rules, New Yorkfs Commercial Division of the Supreme Court amended its Rules of Practice in 2006 to require that parties confer regarding electronic discovery prior to their preliminary conference, at which the court will address (i) implementation of a data preservation plan; (ii) identification of relevant data; (iii) the scope, extent and form of production; (iv) anticipated cost of data recovery and proposed initial allocation of such cost; (v) disclosure of the programs and manner in which the data is maintained; (vi) identification of computer system(s) utilized; (vii) identification of the individual(s) responsible for data preservation; (viii) confidentiality and privilege issues; and (ix) designation of experts. Unif. R. N.Y. State Trial Cts. § 202.70, R. 8(b).
Responding to the lack of uniformity across state law, two organizations have offered proposals for what state procedural rules should require for electronic discovery. In August 2006, the Conference of Chief Justices approved the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information ("Guidelines"). Though they are not intended to be binding on state courts, the Guidelines, which have been distributed to state judicial educators and judges, are intended to help state courts chart sometimes rough e-discovery waters.
In many respects, the Guidelines are similar to the Federal Rules amendments. Like amended Rule 26(f ), the Guidelines encourage the parties to confer regarding issues related to discovery of electronically stored information (ESI). However, the Guidelines uniquely provide judges with a list of factors to consider at the subsequent "initial discovery hearing or conference" before the court. These include: (i) a list of people most knowledgeable about the storage and retrieval of ESI and a brief description of each personfs responsibilities; (ii) custodians of relevant data; (iii) a list of data systems that may contain relevant ESI; (iv) whether relevant data may be of limited accessibility or existence; (v) relevant data stored off-line or off-site; (vi) the partiesf efforts to preserve relevant data; (vii) the desired format of production; and (viii) any reasonably anticipated problems. Like the new Rule 26(b)(2)(B) the Guidelines limit the scope of discovery of ESI. The Guidelines, however, provide a more extensive list of factors for judges to consider, noting that not all factors will necessarily apply in each case. Like amended Rule 34(b), the Guidelines instruct the producing party, in the absence of agreement between the parties, to produce ESI in either the format in which it is ordinarily maintained or in another reasonably usable format. And like Rule 37, the Guidelines envision spoliation sanctions.
Unlike the Federal Rules, the Guidelines differ in that they precisely define certain concepts. First, the Guidelines precisely define "electronically stored informationh as gany information created, stored, or best utilized with computer technology of any type," including:
word-processing documents; spreadsheets; a presentation document; graphics; animation; images; an e-mail and instant messages (including attachments); audio, video, and audiovisual recordings; voicemail stored on databases; networks; computers and computer systems; servers; archives; back-up or disaster recovery systems; discs, CD's, diskettes, drives, tapes, cartridges and other storage media; the Internet; personal digital assistants; hand-held wireless devices; cellular telephones; pagers; fax machines; and voicemail systems.
Second, the Guidelines define "accessible information" as information that is "easily retrievable in the ordinary course of business without undue cost and burden.” The Guidelines also expressly adopt the cost-shifting analysis employed in the landmark decision Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003). Finally, unlike the Federal Rules, the Guidelines provide a list of factors for a judge to use to determine whether a party who discloses confidential ESI has waived the attorneyclient privilege.
In August 2007, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved the Uniform Rules Related to Discovery of Electronically Stored Information (“Uniform Rules”). This alternative attempt at state court uniformity in electronic discovery practice follows the Federal Rules closely. Unlike the Guidelines, the Uniform Rules are intended to be adopted by states and to carry the force of law. They contain ten sections, two of which are definitional, and eight of which are substantive. Like Rule 26(f ), the Uniform Rules instruct parties to confer about electronic discovery — particularly, about preservation of ESI, the format and time frame of production, claims of privilege, and cost-shifting. If the parties fail to agree, the Uniform Rules instruct courts to intervene and to direct electronic discovery.
Like Rule 26(b)(2)(B), the Uniform Rules limit the scope of electronic discovery by providing that a party need not produce ESI that is not reasonably accessible due to undue burden or expense. And also like the Federal Rules, the Uniform Rules reserve to the courts the right to nevertheless order production upon a showing of good cause, and to shift costs if appropriate. The Uniform Rules also follow the Federal Rules by allowing the requesting party to specify a form of ESI production. Absent a specific request, ESI may be produced as it is ordinarily maintained or in a reasonably usable format. The Uniform Rules also track Rule 37(f )’s “safe harbor” provision, which precludes spoliation sanctions in cases where a producing party destroys ESI as the result of its routine, good faith operation of its electronic information system.
The power to retain or amend state rules of civil procedure remains entirely within the states’ discretion. The Guidelines and Uniform Rules represent two non-binding attempts to promote greater uniformity across state lines. To date, many states have not amended their rules to address issues particular to discovery of electronic information. It will be interesting to see whether in time any state trends emerge.