On October 1, 2011, several changes to the N.C. Rules for Civil Procedure take effect. These changes largely concern electronically stored information ("ESI") and, to a significant degree, bring North Carolina's Rules of Civil Procedure into line with the 2006 Amendments to the Federal Rules of Civil Procedure (“FRCP”).
On balance, these changes will have several significant consequences for e-discovery, including:
Required Production of Metadata
The amendments modify the definition of electronically stored information ("ESI") in Rule 26(b)(1) to include certain categories of metadata, which interestingly is not directly addressed by the FRCP. The amendments will likely have a significant impact on the preservation and production of metadata by North Carolina litigants.
The parties will be able to require the production of certain metadata (specifically: author, recipients, date sent and date received). The parties must agree, or the court may order, production of additional metadata. Parties and their attorneys must be prepared to produce this information from the outset of a case. Outside vendors or sophisticated IT Departments should be prepared to provide litigation counsel with this data to load into litigation databases.
The amendments create a new procedure for conducting pre-trial discovery planning conferences to discuss e-discovery issues under Rule 26(f), and expand a litigant’s ability to obtain a court-ordered discovery plan to control the scope and boundaries of electronic discovery under Rule 26(f). Further, the amendments allow a party, under certain circumstances, to withhold discoverable ESI that is not reasonably accessible under Rule 34(b).
The parties can, and should, develop a discovery plan, including a plan for the preservation, retrieval, and production of electronically stored documents. Interestingly, one party can require that a discovery plan be put into place. If requested, the court “shall order the entry of a discovery plan.” R.26(f)(4). These plans are essentially a method of mitigating risks of discovery disputes/sanctions and helping to ensure an orderly, cooperative discovery process. In-house counsel will want to ensure plans are ordered to put limits on costs and control the discovery spend.
Privilege logs will now be required in state court proceedings; currently, the parties usually agree to produce such logs. (See R.26(7)(1) ) .
The amendments protect privileged information that is inadvertently disclosed during discovery under R.26(b)(7).
Essentially adopting Fed. R. Evid. 502, privilege will not be destroyed by inadvertent production, but places the burden on the producing party to notify the receiving party (who then has certain obligations regarding returning the information). N.C. R. Civ. P. 26(7)(2).
The amendments serve to protect parties from discovery sanctions when ESI is deleted pursuant to a routine information management system under Rule 37(c). Corporate counsel will want to be certain the information routine storage, retrieval, and deletion policies are written and followed institutionally, and that “discovery hold” procedures are transparent.
In-house counsel should take steps now to work with their CIO and their litigation counsel to implement appropriate ESI policies and procedures pursuant to the amendments effective October 1, 2011. There is no doubt but that litigants affected by these rule changes will experience an increasing need to implement appropriate ESI policies and procedures, including
- appropriate and timely "hold notices;"
- proportional discovery plans;
- adequate preservation orders; and
- protective orders with clawback provisions.