Introduction

The Ohio Supreme Court is considering proposed amendments to the Ohio Rules of Civil Procedure that would recognize the particularities of discovery involving electronically stored information. A second round of public comment on the proposed amendments ends March 4, 2008, and, baring any hitches after this point, they will go into effect July 1, 2008.

The proposed Ohio amendments are based upon the recent amendments to the Federal Rules of Civil Procedure that went into effect December 1, 2006. This puts Ohio basically in-line not only with federal jurisdictions but with the majority of other state jurisdictions that have begun to address the issues. Indeed, The National Conference of Commissioners of Uniform State Laws (“NCCUSL”), which approved Uniform Rules Relating to the Discovery of Electronically-Stored Information in 2007, plainly makes the case in its prefatory note that there is no need to re-invent the wheel at the state level.

As recommended by NCCUSL, the Ohio proposed rules largely adopt the spirit and direction, indeed much of the verbatim language, of the Federal Rules, while recognizing differences, where necessary, in the practices at the state and federal levels. For example, pre-trial “meet and confer” sessions and extensive discovery plans are not mandatory in Ohio as they are under the Federal Rules. Other changes reflect stylistic differences and, in several areas, Ohio’s rules provide greater specificity and guidance.

Given that Ohio appears to be poised to join the mainstream, there will be no shortage of material to draw from in interpreting the rules once they finally do go into effect in Ohio. In addition to federal case law interpreting highly similar rules, Ohio courts can look to case law in jurisdictions such as Arizona, Louisiana, Minnesota, Montana, New Jersey, and Utah, which have all adopted rules based upon the federal rules. Also potentially helpful to state courts is the 2006 Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, prepared by the Conference of Chief Justices (“CCJ”).

Below is a summary of the proposed Ohio rules, their variances from the federal rules, and a little interpretive case law at the federal level.

Summary of the Proposed Ohio Civil Rules Pertaining to E-Discovery

A. Civ. R. 16 - Discretionary Pretrial Conferences

As amended, Civ. R. 16 adds several e-discovery topics to the list of agenda items a judge may include at a discretionary pre-trial conference. Included in the new additions is Sub-Part (8): “[t]he timing, methods of search and production, and the limitations, if any, to be applied to the discovery of documents and electronically stored information.” While this language is somewhat more specific and narrow than its federal counterpart, any other e-discovery topic, for example, preservation issues, are also permissible under Civ. R. 16’s catch all provision, which is retained in the proposed amendment as Sub-Part (12).

Proposed Sub-Part (9) adds agreements between the parties for asserting claims of privilege and the protection of materials after production to the list of potential pre-trial discussion topics. For example, so-called “claw-back” agreements have become a common means by which parties can agree ahead of time on how to handle the situation where a few privileged emails are inadvertently disclosed among thousands of others in a production set. In the event no such agreements are made by the parties, the default provisions of Proposed Civ. R. 26(B)(6), discussed below, would control.

Proposed Sub-Part (11) of Civ. R. 16 continues the former Ohio rule’s encouragement for the parties to gain agreement before trial regarding the admissibility of evidence. The current form of the proposed language obliquely references electronically stored information by its addition of “other evidence.” As a practical matter, Ohio courts have already begun to deal with the admissibility of electronically stored information. For example, print outs and other output from computers, if accurate, have long been acknowledged as originals under Ohio Evid. R. 1001(3). Similarly, Ohio courts have had no difficulty finding that the process of taking a “mirror image” of a hard drive (an exact electronic copy) passes muster under Ohio Evid. R. 901(B)(9) and may be admissible in place of the original hard drive.

B. Civ. R. 26 – General Provisions for E-Discovery

Proposed Civ. R. 26 would clarify that discovery of electronically stored information is permitted while also clarifying the limits of such discovery and providing a default mechanism for asserting claims of privilege and protecting information produced.

1. Civ. R. 26(B)(4) – Limitations on E-Discovery

In Proposed Civ. R. 26(B)(4) largely adopts the federal rule’s limitations for unduly burdensome discovery of electronically stored information. Under both rules, if the party resisting discovery is served with a motion to compel, it must demonstrate that that the requested information is not “reasonably accessible” because of undue burden or cost. If this showing is made, the court may nevertheless order the discovery if the requesting party shows good cause. The rule also expressly recognizes the court’s inherent power to specify the format, extent, timing, allocation of expenses and other conditions.

Like its federal counter-part, proposed Ohio Civ. R. 26(B)(4) provides a list of factors to consider in determining “good cause.” The Ohio factors are nearly identical to Fed. R. Civ. P. 26(b)(2)(C), which in turn are substantively unchanged from former Fed. R. Civ. P. 26(b)(2)(i),(ii), and (iii). Both include consideration of: “whether the discovery sought is unreasonably cumulative or duplicative; whether the information sought can be obtained from some other source that is less burdensome, or less expensive; and whether the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.”

The Ohio Rule provides its own semantics for the final factor copied from the federal rule: “whether the burden or expense of the proposed discovery outweighs the likely benefit.” Under the Ohio Rule, this factor is to be weighed by “taking into account the relative importance in the case of the issues on which electronic discovery is sought, the amount in controversy, the parties’ resources, and the importance of the proposed discovery in resolving the issues.” The difference being that the federal corollary includes “the needs of the case” and “the importance of the issues at stake in the litigation” for the italicized language above.

Also like its federal counter-part, the Ohio’s 26(B)(4) omits any guidance for the court’s consideration of what constitutes when information is “not reasonably accessible because of undue burden or cost” and further fails to articulate a means for the just allocation of expenses in the situation where information that is not “reasonably accessible” is nevertheless required to be produced upon a showing of good cause.

The highly influential series of decisions in the case of Zubulake v. UBS Warburg LLC, which were a pre-curser to the 2006 Federal Rules, may provide some guidance to state courts. Indeed, the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, published by the Conference of Chief Justices (“CCJ”) in August of 2006, cite and discuss Zubulake for both of these issues.

In addressing the first question, whether the information is reasonably accessible, the court in Zubulake I focused on the particular forms of media electronically stored information may be found. The court defined several categories of such media and opined that information stored on back-up tapes or that was erased, fragmented or damaged were more likely to be inaccessible.

On the question of cost shifting, Zubulake I set out a seven factor test, the first six factors being based upon the same test under the Federal Rules for “good cause,” discussed above. The last factor, considered the least important by the court, is “the relative benefits to the parties of obtaining the information.” In Zubulake III, the court applied these factors, noting:

As a general rule, where cost-shifting is appropriate, only the costs of restoration and searching should be shifted. Restoration, of course, is the act of making inaccessible material accessible. That “special purpose” or “extraordinary step” should be the subject of cost-shifting. Search costs should also be shifted because they are so intertwined with the restoration process; a vendor…will not only develop and refine the search script, but also necessarily execute the search as it conducts the restoration. However, the responding party should always bear the cost of reviewing and producing electronic data once it has been converted to an accessible form.”

Two reasons were cited by the court. First, the producing party has the exclusive ability to control the cost of reviewing the documents. Second, once information has been converted from “inaccessible” form to an “accessible” form, cost shifting is no longer appropriate.

2. Civ. R. 26(B)(6) – Privilege and the Protection of Information Produced

Proposed Civ. R. 26(B)(6) addresses claims of privilege or work product in the same manner as Fed. R. Civ. P. 25(b)(5), and, like the federal rule, applies to all discovery, not just electronic discovery. First, where information is withheld, sufficient disclosure must be provided to allow the requesting party to contest the claim of protection.

The second portion of the amended rule provides a default mechanism for resolving situations where a party inadvertently produces information and then later wishes to make a claim of privilege. With regard to this provision, the drafting committee noted: “The amendments to Rule 26(B)(6)(b) do not conflict with the new Ohio Rule Prof. Conduct 4.4(b) requirement that an attorney who ‘knows or reasonably should know that the document was inadvertently sent” must “promptly notify the sender.’ Rather, the two rules work in concert: Rule 26(B)(6)(b) is triggered when actual notification is received from the sender that the material was inadvertently sent, and Ohio Rule Prof. Conduct 4.4(b) is animated when the recipient realizes that the material provided by an opponent is likely privileged.”

C. Civ. R. 33 & 36 Timing for Interrogatories & Requests for Admission

Proposed Civ. R. 33 would clarify that the time for responding to interrogatories does not begin to run until the party from whom discovery is sought receives both an electronic and paper copy of the interrogatories. Although not specifically an electronic discovery issue, the Commission thought the amendment was necessitated by 2004 amendments that required the party seeking discovery to serve interrogatories in both paper and electronic form but did not state the consequences for failing to do so.

Proposed Civ. R. 36, much like Civ. R. 33, would clarify that the time for responding to requests for admission does not begin to run until the party from whom discovery is sought receives both an electronic and paper copy of the requests.

D. Civ. R. 34 – Production

In response to feedback from the last comment period, Proposed Civ. R. 34 adopts the title of its federal counterpart in order to recognize that electronically stored information is usually not considered a “tangible item.” However, unlike the federal rule, the current form of the proposed Ohio rule leaves in question whether the same ability to test and sample is provided to both forms of discovery.

Proposed Civ. R. 34(A)(1) provides that requests may be made to produce and permit inspection or copying of “documents or electronically stored information.” 34(A)(2) on the other hand, which is specific to “tangible things,” and allows a requesting party to “inspect and copy, test, or sample.” This distinction is in variance to the federal rules and no explanation for the separate treatment has been provided in the staff notes. Whether the distinction would permit a requesting party to test or sample computers or digital media (tangible items) in order to test or sample electronically stored information residing therein is left an open question under the language.

Though perhaps a bit of a stretch, the question could also be raised whether 34(A)(3) would nevertheless grant that which 34(A)(2) would seek to deny. In 34(A)(3), it is stated that the requesting party may “enter upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on the property.” If “electronically stored information” is neither an “object” nor a “tangible thing,” could it nevertheless be an “operation” in the sense that all human readable electronic data is the result of computer operations that convert binary information to graphical text?

The author submits that there does not appear to be a persuasive rationale for preventing the testing and sampling of electronically stored information. Indeed, when faced with gigs and gigs of information, testing and sampling may be the most cost effective initial step for both parties. Concerns of privacy, confidentiality, and security are no different at the state level than they are at the federal level and the same safeguards would be effective in both jurisdictions. Federal courts have also had little difficulty in denying requests for mere fishing expeditions.20 Furthermore, as recently noted by Magistrate King of the S.D. of Ohio, Federal Rule 34(a) does not supply requesting parties with the extraordinary and invasive power to conduct the actual search on their adversary’s computer systems; rather, it merely provides that the responding party must search his records to produce the required, relevant data.

Alternatively, if a principled basis for maintaining the distinction does exist, the language of this rule should be revised to clarify the drafter’s intent with regard to testing and sampling of the media upon which electronically stored information resides.

Like the federal rule, the procedures in the proposed Civ. R. 34(B) allow for a requesting party to specify the form or forms of production for electronically stored information with the limitation that may not require production in more than one form. For example, a party may request that memoranda be produced in Microsoft Word format while any spreadsheets be produced in Excel. If no form is specified in the request, the responding party may provide it “in any form that is reasonably useable.” If there are objections and the parties cannot agree on the form or forms, the courts are to resolve the issue under Rule 37.

E. Civ. R. 37 — E-Discovery Safe Harbor

Like the Federal Rule, proposed Civ. R. 37(f) would provide a safe harbor from sanctions where a party fails to provide electronically stored information lost as a result of “the routine, good-faith operation of an electronic information system.” The Ohio Rule goes further, providing several factors for courts to consider in determining whether to impose sanctions: “(1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division.”

F. Civ. R. 45 — E-Discovery Subpoena

Proposed Civ. R. 45 would specify that a subpoena may be used to obtain electronically stored information from nonparties. The proposed amendments are similar to those discussed in Civ. R. 26 & 34 regarding discovery of electronically stored information from parties.

Conclusion

With some minor variation, the Ohio rules tack closely to the direction provided by the Federal Rules. The perspective of two and a half years of reported cases under these federal rules will likely prove influential in the interpretation of the Ohio rules when they go into effect as early as July of this year.

Ultimately, time will tell how Ohio judges, litigators, and parties choose to respond to the new rules. If the experience thus far at the federal level is any guide, many will do their best to ignore the issues as much as possible. Others will overreact and seek $50,000 worth of discovery activity for a $10,000 case. A reality that all must face is that the amount of electronic documents, email, and other information stored by individuals and organizations continues to grow at a mind boggling rate. In cases where some of this electronically stored information may be relevant, the danger to those who pursue a strategy of studied ignorance is that their adversary may actually know the rules and how to use them to the advantage of their client.