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The advisory committee on the Federal Rules of Civil Procedure has published draft amendments addressing electronic discovery. The proposals extend beyond electronic discovery in some respects. Changes to rules 26(f), 16(b) and 26(b)(2) This article addresses the proposed changes to rules 26(f), 16(b) and 26(b)(2). The next column will address rules 26(b)(5), 33 and 34. Parties’ Initial Discovery Conference. Rule 26(f), which governs the parties’ initial discovery conference, would be amended to add three topics to the discussion: (1) “any issues relating to preserving discoverable information”; (2) “any issues relating to disclosure or discovery of electronically stored information, including the form in which it should be produced”; and (3) “whether, on agreement of the parties, the court should enter an order protecting the right to assert privilege after production of privileged information.” The proposed amendments to Rule 26(f) are sound. Preservation (or spoliation), electronic discovery and privilege issues should be addressed in the initial discovery conference, and the draft amendments remind counsel to do so. Two aspects of the draft amendment to Rule 26(f) merit particular attention. First, items (1) and (3) are not limited in impact to electronic discovery. Item (1) addresses spoliation generally. Item (3) governs the commonly entered agreement that inadvertent production of a privileged document will not effect a waiver as well as the more esoteric agreements that permit the intentional disclosure of potentially privileged electronic data without waiver. Second, note that item (2) assumes that a party may specify a particular format when requesting production of electronically stored information. Proposed rules 34(b) and 45(a)(1) confer this right on the requesting party. Initial Court Conference. Parallel to Rule 26(f), proposed Rule 16(b) adds two optional topics for the scheduling order entered at the initial pretrial conference: “provisions for disclosure or discovery of electronically stored information.” “adoption of the parties’ agreement for protection against waiving privilege.” This should be uncontroversial. Electronic discovery and nonwaiver agreements are important subjects, and reminding the court (like counsel) to consider them at the inception of the litigation is prudent. “Reasonably Accessible” Electronic Information. Rule 26(b)(2) would be amended to permit a party to object to a discovery request that calls for electronically stored information which is not “reasonably accessible,” requiring a motion to compel to obtain the data: “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 has at least four important features. First, it focuses solely on access: whether electronically stored information is “reasonably accessible.” There are many other costs and burdens associated with electronic discovery apart from inaccessibility-most prominently, those generated by the sheer volume of data, which often are in active use and “accessible.” To the extent that current Rule 26(b)(2)(iii) is deemed adequate to address all issues concerning the burden and expense of electronic discovery other than accessibility, it raises the question why a new provision is necessary to deal solely with accessibility. One answer could be that a different standard is needed to decide burden issues raised by inaccessibility. However, it does not appear that any different standard is being introduced. Second, the new standard-”reasonably accessible”-is presumably different from the criteria currently contained in Rule 26(b)(2)(iii) or there would be no reason to introduce it. What this difference may be is not explained in the text of the Rule, and it is not entirely clear from the committee note. A persuasive argument can be made that the two standards are substantially the same, and that there is no need for the new locution. Currently, Rule 26(b)(2)(iii) excuses production when “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Litigants frequently collapse these factors into an objection that responding to a particular discovery request would be “unduly burdensome,” echoing the “undue burden” language of rules 26(c) and 45(c)(1). Compare current Rule 26(b)(2)(iii) with the discussion of the “reasonably accessible” standard contained in the draft committee note. The note provides examples that focus on “burden” and “expense,” and largely makes “not reasonably accessible” sound the same as “unduly burdensome”: “Many parties have significant quantities of electronically stored information that can be located, retrieved, or reviewed only with very substantial effort or expense. For example, some information may be stored solely for disaster-recovery purposes and be expensive and difficult to use for other purposes. Time-consuming and costly restoration of the data may be required and it may not be organized in a way that permits searching for information relevant to the action. Some information may be ‘legacy’ data retained in obsolete systems; such data is no longer used and may be costly and burdensome to restore and retrieve. Other information may have been deleted in a way that makes it inaccessible without resort to expensive and uncertain forensic techniques, even though technology may provide the capability to retrieve and produce it through extraordinary efforts. Ordinarily such information would not be considered reasonably accessible.” The note consistently seems to equate “not reasonably accessible” with “substantial effort and expense,” clouding any distinction between the new standard and current Rule 26(b)(2)(iii): “The fact that the party does not routinely access the information does not necessarily mean that access requires substantial effort or cost.” Based on the draft note, “not reasonably accessible” does not sound different from “unduly burdensome.” If there is no substantial difference, introduction of the phrase may breed confusion in typical electronic discovery cases. Consider, for example, the objection of a responding party who complains of the burden and expense of: (i) accessing backup tapes, legacy data and deleted data, and (ii) retrieving, converting and producing millions of pages’ worth of electronic data in current use (and thus “accessible”). As far as the responding party is concerned, time and money are the issue with respect to both (i) and (ii). Is the standard different for each? If so, how? If not, why introduce a new phrase? Undue burden seems to capture everything. If it does not, substantially more guidance is required in the rule and the note to make it clear why not. The draft Advisory Committee Note does provide valuable insights in its explication of the accessibility issue. Ultimately, it recognizes that case law is necessary to give shape to the principles that animate the proposal. That case law is currently developing without the nominally different standards governing “accessibility” issues and those governing all other electronic discovery issues. There seems to be every reason to expect that the case law will continue to evolve if the “reasonably accessible” proposal is not adopted. Third, the proposal’s exclusive focus on access is a product of the present-state electronic information storage. Just as the current proposals are deleting references to “phonorecords,” it may be that this proposal will soon be dated. A two-tiered approach to deciding ‘accessibility’ Fourth, this proposal creates a two-tiered approach to deciding “accessibility” issues. Electronically stored information that is “reasonably accessible” is subject to discovery through a simple request. Electronically stored information that is not “reasonably accessible” is discoverable only by court order on a motion to compel production. On the motion to compel, the responding party carries the burden of proving that the information is “not reasonably accessible.” (Of course, absent discovery on that issue, only the responding party has knowledge of the relevant facts.) If the responding party convinces the court that the information is not “reasonably accessible,” the requesting party must show “good cause” to obtain an order requiring production. As a matter of procedure (putting aside the new, “reasonably accessible” standard), this change to a two-tiered approach is more apparent than real, but the amendment nicely clarifies respective burdens. Under current practice (and as regards all types of discovery), there is in effect a two-tiered approach-a motion to compel is required if a responding party objects to production on grounds of undue burden or expense. On the motion to compel, once the movant has demonstrated sufficient relevance, the responding party carries the burden of proving that discovery should be limited under Rule 26(b)(2) or 26(c). The new rule crystallizes current practice and clarifies, with the new “good cause” standard for overcoming presumptive nonproduction, an important part of the calculus currently employed by the courts in deciding whether, or on what terms, to grant discovery. Given the desirable clarity of this aspect of the amendment, one may ask why the Committee limits its reach to disputes over the accessibility of electronic discovery. It would be a useful paradigm for deciding Rule 26(b)(2) (and Rule 26(c)) issues generally, regardless of whether the “reasonably accessible” approach is adopted. Gregory P. Joseph is a fellow of the American College of Trial Lawyers and a past chair of the Litigation Section of the ABA. He can be reached at [email protected].

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