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This is the second of two articles addressing draft electronic discovery rules published for comment by the Advisory Committee on the Federal Rules of Civil Procedure. [See NLJ, Oct. 4, for Part I]. Privileged Information. The proposed amendment to Rule 26(b)(5) would renumber the existing provision as Rule 26(b)(5)(A) and add a new Rule 26(b)(5)(B): “Privileged information produced. When a party produces information without intending to waive a claim of privilege it may, within a reasonable time, notify any party that received the information of its claim of privilege. After being notified, a party must promptly return, sequester or destroy the specified information and any copies. The producing party must comply with Rule 26(b)(5)(A) with regard to the information and preserve it pending a ruling by the court.” Notable features of this proposal include: (1) it is not limited to inadvertent production; (2) it extends beyond electronic discovery to all documents and things; and (3) it does not address whether a waiver of privilege has been effected. Note that in some jurisdictions, the fact of production ordinarily effects a waiver of privilege, regardless of intent. The proposal requires the recipient to “return, sequester or destroy the specified information and any copies,” and the producing party must “preserve it pending a ruling by the court.” Thus, the recipient may not present the documents to the court for decision and argue from their terms. That is not optimal. The terms of the document may matter. The rule should permit the requesting party to present the document to the court promptly after the request for return is made. Rule 33 amended to clarify interrogatory issue Interrogatories. Rule 33 would be amended to make it clear that a party may answer an interrogatory by referring to specific “electronically stored information,” just as it may with any other business records. The draft does so by providing that “electronically stored information” is included within the definition of “business records.” It is interesting that Rule 33 expands the phrase “business records” to encompass “electronically stored information,” while at the same time, draft Rule 34 carves “electronically stored information” out of the definition of “document.” Document Requests. Rule 34 would be amended in several ways: First, it expressly distinguishes between electronically stored information and “documents.” Rule 34(a) would read: “Any party may serve . . . a request (1) to produce and permit the party making the request . . . to inspect, and copy, test, or sample any designated electronically stored information or any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images phonorecords , and other data or data compilations in any medium from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect, and copy, test, or sample any designated tangible things***.” This proposal is problematic. It is unclear whether the parenthetical refers only to the immediately preceding term, “designated documents,” or to the broader phrase “electronically stored information or any designated documents.” The parenthetical includes “sound recordings, images, and other data or data compilations in any medium.” These clearly subsume electronic data. If these items are “documents,” then “document” includes at least some types of “electronically stored information,” blurring any distinction. If these items are not “documents” -because the parenthetical refers to the entire phrase “designated electronically stored information or any designated documents”-then the rule makes no distinction between the two. The proposed distinction between “electronically stored information” and “documents” appears to be a solution in search of a problem. Present practice is to include electronic data within the definition of “document” in Rule 34 requests for production and Rule 45 subpoenas. Some local rules do so, negating any need for the parties’ document requests to include any such definition. The draft Advisory Committee Note observes that “[i]t is difficult to say that all forms of electronically stored information fit within the traditional concept of a document.” Whatever the “traditional concept” might be, it is not the concept entertained by bench or bar for the past decade or so. If the amendment to Rule 34(a) is adopted, document requests must be rewritten so that “electronically stored information” is distinctly requested. Otherwise, “documents” may not be read as requesting electronic data. Since it takes years for practice to catch up to changes to the rules, this distinction could be expected to wreak some havoc as practitioners gradually become aware of the need to change their form definitions. The Advisory Committee Note provides that “[A] Rule 34 request for production of ‘documents’ should be understood to include electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and ‘documents.’ ” The initial, independent clause appears incompatible with the “ express distinction” that the rule-makers are attempting to articulate. The subsequent, dependent clause, optimistically, does not mean that, if one party is aware of the new rule and makes the distinction in its requests, the other party is burned for failing to do so. It would be preferable to define documents to include “electronically stored information” rather than to carve them out separately. Second, Rule 34(b) would be amended to provide that “[t]he request may specify the form in which electronically stored information is to be produced,” and the response may include an “objection to the requested form for producing electronically stored information.” This codifies present practice. Query whether as a drafting matter, these sentences should be limited to electronically stored information. It is common for document requests to specify, e.g., an electronic production format for hard copies. This provision presumably should not be read as limiting that practice. A new Rule 34(b)(ii) would be added to provide that: “[I]f a request for electronically stored information does not specify the form of production, a responding party must produce the information in a form in which it is ordinarily maintained, or in an electronically searchable form. The party need only produce such information in one form.” Note that the first alternative in the first sentence is that the information must be produced in “a” form-not “the” form-in which the information is ordinarily maintained. This affords the responding party some latitude. The last sentence of proposed Rule 34(b)(ii) provides that, in the absence of an agreement or a court order, information needs to be produced in only “one form.” Electronic information and hard copies are not equivalent in the information that they convey. Sometimes, electronic data provide more information than hard copies, e.g., reflecting edits or the date/time of creation, editing, receipt or opening. Sometimes, hard copies provide more information than electronic data, e.g., association by rubber bands, staples or clips. Requesting parties should bear in mind that producing parties are making judgments when deciding on the form of production. A new Rule 37(f) includes safe harbor from sanctions Sanctions Safe Harbor. A new Rule 37(f) would include a safe harbor from sanctions relating exclusively to electronically stored information. Unless a discovery order has been violated, no sanctions could be imposed if: (1) The party took reasonable steps to preserve the information after it knew or should have known that the information was discoverable in the action and (2) the failure resulted from loss of the information because of the routine operation of the party’s electronic information system. There are at least three important aspect of this proposal. First, this safe harbor appears to be illusory. The proposal affords a safe harbor only from sanctions under the Federal Rules of Civil Procedure. But there is no provision in the rules authorizing the imposition of sanctions for failing to produce information despite all reasonable efforts to do so, absent violation of a court order. Rule 11 does not apply to discovery; Rule 26(g) applies only to written discovery requests, responses and objections; and Rule 37, in relevant part, authorizes sanctions only for: (1) noncompliance with a discovery order, (2) failure to serve a written response to a Rule 34 request for production and (3) failure to make any Rule 26(a) disclosure or amend a prior response to discovery as required by Rule 26(e)(2). Nor does the draft Advisory Committee Note suggest that any judge has imposed sanctions for the behavior covered by the proposed safe harbor. Second, the exclusive focus of paragraph (2) on routine deletion of data is problematic. This proposal suggests that if a party fails to provide electronic information for any reason other than “routine operation of the party’s electronic information system,” sanctions may be appropriate despite the fact that the party has acted reasonably. There are many other reasons why data disappear over time. Suppose that, early in the litigation, all relevant data have been housed on special servers, but the servers are destroyed through no fault of the producing party (such as Hurricane Frances). That certainly is not sanctionable. Third, this proposal would change corporate behavior. Parties who are routinely sued will accelerate the routine deletion of data. Is this behavior that should be encouraged? Gregory P. Joseph ([email protected]) is a fellow of the American College of Trial Lawyers and a past chair of the Section of Litigation of the American Bar Association.

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