Changes to Federal Rules 2005

Changes to Federal Rules 2005 - Civil
In effect on December 1, 2006

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DAVID F. LEV1
CHAlR
PETER G. McCABE
SECRETARY
COMMITTEE ON RULES OF PRACTICE AND PROCEDURE Agenda E-18 (Appendix C) OF THE Rules
JUDICIAL CONFERENCE OF THE UNITED STATES September 2005
WASHINGTON. D.C. 20544
CHAIRS OF ADVISORY COMMITTEES
SAMUEL A. ALITO, JR.
APPELLATE RULES
THOMAS S. ZlLLY
BANKRUPTCY RULES
LEE H. ROSENTHAL
CIVIL RULES
SUSAN C. BUCKLEW
To: Honorable David F. Levi, Chair, Standing CRIMINAL RULES
Committee on Rules of Practice and Procedure JERRY E. SMITH
EVIDENCE RULES
From: Honorable Lee H. Rosenthal, Chair, Advisory Committee on the
Federal Rules of Civil Procedure
Date: May 27,2005 (Revised July 25,2005)
Re: Report of the Civil Rules Advisory Committee Introduction
The Civil Rules Advisory Committee held three hearings in 2005 on proposed rules amendments published for comment in August 2004. The hearings were held on January 12 in San Francisco, January 28 in Dallas, and February 1 1 and 12 in Washington, D.C. The Committee met at the Administrative Office of the United States Courts on April 14- 15,2005. Draft minutes of the April 2005 meeting are attached. Summaries of the written comments and testimony presented at the hearings are also provided with the several recommendations of proposed rule amendments for adoption.
Parts I and 11 present action items. Part I recommends transmission for approval of amendments to several rules. Rules 5(e) and 50(b) come first. The next set of rule amendments is a comprehensive package addressing discovery of electronically stored information, including revisions of Rules 16,26, 33, 34, 37, and 45, as well as Form 35. The last set of rule amendments recommended for approval is a new Supplemental Rule G governing civil forfeiture actions; this package includes conforming changes to other Supplemental Rules, including the title and Rules A, C, and E. Part 1 includes a conforming amendment to Rule 26(a)(l) that was published with Rule G and conforming amendments to Rules 9(h) and 14 and 26(a)(l)(E) that are recommended for adoption without publication. For each of the four categories of rule amendments recommended for approval, these materials set out a brief introductory discussion, followed by the text of the proposed rule amendment and Committee Note and a summary and explanation of the changes made since publication.
I. Action Items: Rule Amendments Recommended for Approval
A. Rule 5(e)
1. Discussion
The Advisory Committee recommends approval for adoption of amended Rule 5(e). The proposed amendment to Rule 5(e) authorizes adoption of local rules that require electronic filing.
The proposed amendment was published last November, with parallel changes to the Appellate, Bankruptcy, and Civil Rules. The Criminal Rules incorporate the Civil Rules on filing and will absorb the proposed revision of Rule 5(e).
The published proposal was simple. It added two words to Rule 5(e), saying that a court "may by local rule permit or require" filing by electronic means. The Committee Note included this sentence: "Courts requiring electronic filing recognize the need to make exceptions for parties who cannot easily file by electronic means, and often recognize the advantage of more general 'good cause' exceptions." Several comments suggested that this Committee Note advice would not sufficiently protect litigants who face serious - perhaps insurmountable - obstacles to electronic filing. Meeting before the Civil Rules Committee, the Bankruptcy Rules Committee recommended that the parallel Bankruptcy Rule text include an express limit directing that a court reasonably accommodate parties who cannot feasibly comply with mandatory electronic filing. Several drafting alternatives were considered by the Civil Rules Committee. The Appellate Rules Committee met last, and also considered several drafting alternatives. Discussions carried on after the committee meetings led to agreement by the Appellate and Civil Rules Committees to recommend a version adding a separate sentence: "A local rule may require filing by electronic means only if reasonable exceptions are allowed."' Corresponding Committee Note language was also agreed to.
The Appellate Rules Committee proposes to include Committee Note language recognizing that a local rule may direct that a party file a hard copy of a paper that must be filed by electronic means. The Civil Rules Committee concluded that this statement is appropriate for the Appellate Rule Note because of the nearly universal desire to have paper briefs on appeal, a circumstance that distinguishes appellate practice from district court practice. District courts face a great variety of filings. At times it may be desirable to require the parties to provide hard copies of papers filed electronically, but it seems unwise to attempt advice on this topic until there is more experience with mandatory electronic filing.
he Advisory Committee had proposed language that put the rule and limit in a single sentence: ". . . may by local rule permit or - if reasonable exceptions are allowed - require papers to be filed, signed, or verified by electronic means - that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes." At its June 15-1 6, 2005, meeting, the Standing Committee adopted the separate-sentence formulation.
PROPOSED AMENDMENTS TO THE FEDERAL RULES CIVIL PROCEDURE*
Rule 5. Service and Filing of Pleadings and Other Papers
* * * * *
(e) Filing with the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. A court may by local rule permit require papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A local rule may require filing by electronic means only if reasonable exceptions are allowed. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.
*New material is underlined; matter to be omitted is lined through.
Committee Note
Amended Rule 5(e) acknowledges that many courts have required electronic filing by means of a standing order, procedures manual, or local rule. These local practices reflect the advantages that courts and most litigants realize from electronic filing. Courts that mandate electronic filing recognize the need to make exceptions when requiring electronic filing imposes a hardship on a party. Under amended Rule 5(e), a local rule that requires electronic filing must include reasonable exceptions, but Rule 5(e) does not define the scope of those exceptions. Experience with the local rules that have been adopted and that will emerge will aid in drafting new local rules and will facilitate gradual convergence on uniform exceptions, whether in local rules or in an amended Rule 5(e).
3. Changes Made after Publication and Comment
This recommendation is of a modified version of the proposal as published. The changes from the published version limit local rule authority to implement a caution stated in the published Committee Note. A local rule that requires electronic filing must include reasonable exceptions. This change was accomplished by a separate sentence stating that a "local rule may require filing by electronic means only if reasonable exceptions are allowed." Corresponding changes were made in the Committee Note, in collaboration with the Appellate Rules Committee. The changes from the published proposal are shown below.
Rule 5. Service and Filing of Pleadings and Other Papers*
* * * * *
(e) Filing with the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. A court may by local rule permit or require papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A - local rule may require filing by electronic means only if reasonable exceptions are allowed. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.
*Changes from the proposal published for public comment shown by double underlining new material and striking through omitted matter.
Summary of Comments: Civil Rule 5(e)
04-CV-060: Hon. Robert J. Hallisey: This comment addresses a part of present Rule 5(e) that is not affected by the proposed amendment. The rule directs a judge who accepts a paper for filing to "forthwith transmit" the paper to the clerk. The comment suggests that courtesy to the judge would be better served by directing action within a reasonable time. (Style Rule 5(d) directs the judge to "promptly" send the paper to the clerk.)
04-CV-071. R e ~ n a Mullen, Director, Prison Services Project: Electronic filing has clear advantages, particularly for lawyers in small firms and organizations. It could be a great advantage for prisoners in jails and mental institutions, but only if they are provided access to computers and to Internet services "without interference or intrusion." The Rule cannot ensure computers and Internet access.
Thus the Rule "must include a provision providing a blanket exception for filings by prisoners who are not represented by counsel." Otherwise some court will adopt a local rule that does not recognize the prisoner problem. Greater flexibility may be appropriate with respect to other pro se litigants, but they should be required to use electronic filing only if the court provides a computer and scanning facilities for local litigants, and permits non-local litigants to file electronically from their own local federal courthouse. -.
04-CV-097. Hon. William M. Acker, J., N.D.Ala.: Most district courts already require electronic filing by local rule. "Either we have the authority to do what we have already done, in which event we do not need a rule change, or we do not have that authority and we should be ashamed." 04-CV-117. Eliot S. Robinson: Writing as one who has experience as a pro se litigant, urges that "pro se parties must be provided with full access to any electronic system for the filing of papers with the court. Full access includes without limitation system access at the Pro Se Office, remote pro se system access, training, filing capability, searching capability, reading capability, bidirectional file transfers and printing capability." If a pro se litigant elects not to use electronic filing, the pro se office must accept paper and convert it to electronic form. Only non-proprietary file standards should be used, such as PDF, TIFF, and others.
04-CV-139. Joseph R. Compoli, Esq.: "E-filing is atrocious. It is almost impossible to send attachment documents by e-filing as a result of the enormous time to download them." He and defense counsel both had to manually file attachments- and defense counsel was from a large firm.
Remote filing also thwarts face-to-face discussions that occur when judge, counsel, and clients are all together in the same place.
04-CV- 168, American Bar Assn.: The Rule text should incorporate the protections for disadvantaged litigants that are described in the Committee Note. It should incorporate the safeguards of Standard 1.65(c)(ii), ABA Standards Relating to Court Organization: Mandatory Electronic Filing Processes: Court rules may mandate use of an electronic filing process if the court provides a free electronic filing process or a mechanism for waiving electronic filing fees in appropriate circumstances, the court allows for the exceptions needed to ensure access to justice for indigent, disabled or self-represented litigants, the court provides adequate advanced notice of the mandatory participation requirements, and the court (or its representative) provides training for filers in the use of the process.
04-CV-171. Washington State Access to Justice Board, Hon. Donald J. Horowitz: Urges first that it is premature to authorize mandatory electronic filing, and second that if mandatory electronic filing is authorized there must be provisions for alternative filing means that ensure equal treatment of all filers. The Board has devoted much time to developing an electronic filing rule for Washington that does not allow for exclusive mandatory electronic filing; it allows local courts to decide whether to charge extra for electronic filing, but requires application of the same forma pauperis standards as apply to waiving regular filing fees.
The central concern is that mandatory e-filing may impede access to justice. Courts cannot decide which segments of the population to serve for greatest profit; "courts must be equally available to all." Pro se litigants will face the greatest barriers, including access to technology, a particular problem in rural communities and many inner-city areas; inability to use technology, including physical disabilities; and incarceration. Even if a person suffering these disadvantages manages to accomplish electronic filing, there is no ability to receive notices or other electronic transmissions from the court.
It is a mistake to rely on local rules to address these problems. "Without standards [in the national rule] there is no rule of law." No guidance is provided for local courts adopting local rules.
The belief that local rules so far have proved wise is no cure-all: "Why is there a need for any national rule at all if reliance is simply on local practice?" National standards can be drafted so as to accommodate variations in local conditions and needs.
04-CV-172, HALT (Americans for Legal Reform): HALT "works to reduce and eliminate barriers that might prevent consumers from resolving their legal issues through self-help at the lowest possible cost." The Note comments about the need to make exceptions for pro se litigants should be included in the Rule text, and most especially in the Bankruptcy Rule that applies to people who by definition are least likely to have access to effective legal help. Rule 5(e) would include this new sentence and a fraction: "Courts requiring electronic filing must make exceptions for parties such as pro se litigants who cannot easily file by electronic means, allowing such parties to file manually upon showing of good cause. In any event, the clerk shall not refuse to accept * * *." (The comment notes an ABA estimate that 38,000,000 low- and moderate-income Americans are shut out of the legal system each year because they cannot afford to hire lawyers.)
04-CV-173, Northwest Women's Law Center: They handle 3,000 to 5,000 calls for legal information annually. Mandatory electronic filing will raise yet another hurdle for self-represented individuals.
The rule should mandate that all federal courts "ensure access for pro se litigants. We recommend assistance from staff at federal courthouses, including technical assistance using court equipment and conversion of hard copies by court staff. In addition, the rule should include exceptions for those who cannot make use of this type of assistance." It is not enough to rely on gradual convergence on uniform exceptions.
04-CV- 174, Committee on Federal Courts, State Bar of California: The Committee Note recognizes the problems posed by parties "who may have difficulty complying with an electronic filing requirement, including economically disadvantaged and incarcerated parties." This statement should remain in the Note.
04-CV-175, Standing Committee on the Delivery of Legal Services. State Bar of California: Supports "provided that exceptions are made for file [sic] by traditional means for: I) pro se litigants who lack resources and/or the ability to comply, such as incarcerated individuals, and 2) attorneys who lack the technological resources to file papers electronically such as some legal aid attorneys - and some pro bono attorneys. In addition, any electronic filing program implemented by the courts should offer sufficient technical support with a designated number of people to call to speak with * * * to walk the pro se litigant or attorney through the e-filing process."
04-CV-184, California Commn. on Access to Justice: Mandatory e-filing may raise the barriers facing pro se litigants, particularly those with limited English proficiency. The Committee Note should be revised, or - better - the proposed Rule should be amended to make it clear "that an exception to electronic filing should be made for unrepresented parties. The rule should make clear that local courts have the option of setting up a system that allows unrepresented parties to use the electronic filing system if they prefer to do so." 04-CV-217, Executive Committee. State Bar of Michigan: "[O]pposes the proposed rule, to the extent that it permits local courts to require e-filing of persons other than attorneys." The rule would be supported if it applied only to filings by attorneys and assured that local rules must allow an attorney to show good cause for failing to file electronically. (1) Most attorneys use computers and the Internet. Unrepresented persons should be allowed to use e-filing. But they should not be required to do so. Barriers include limited English proficiency, special obstacles for incarcerated persons, costs, unfamiliarity with the process, lack of appropriate software, and the intimidating nature of the process. (2) Attorneys may have good cause for paper filing - lack of access to adobe acrobat software, cost, or the like. (3) Any system must be "Bobby compliant" - it must comply with the guidelines developed by the Center for Applied Special Technology to ensure access for persons with disabilities. (4) Provision must be made to permit payment of filing fees in person because some legal organizations or litigants may not be able to pay by credit card. (5) Provision should be made for forma pauperis paper filings, including waiver of any additional fees charged for e-filing and conditional acceptance of paper filings while the petition for leave to proceed i.f.p. is pending. (6) [Anticipating the E-Government Act rules] Provision must be made to shield various data fields, particularly social security numbers and other account numbers. Information about addresses (domestic violence situations are an example) and medical conditions should not be readily available through the Internet. (7) Advisory bodies should be established, including representatives from organizations representing populations with special needs that affect the ability to file electronically.
04-CV-234, John H. Messinn, Esq.: (Mr. Messing speaks only for himself, but is chair of the Electronic Filing Committee of the ABA Science and Technology Law Section.) Endorses the ABA comments in 04-CV- 168, and suggests further protections. A court that requires electronic filing is obligated to ensure security on an ongoing basis "because security threats evolve and become more sophisticated at an ever-increasing rate. * * * Electronic court orders [I are often subject to tampering in undetectable ways. Without available standard security protections, it is unfair to require the use of court electronic systems by all practitioners, who may not understand what must be done from their side properly to protect their computers and the integrity of the documents being exchanged.
We see examples in electronic commerce daily of identity theft and electronic document alterations.
* * * Just last week some mainland Chinese cryptographers broke the encryption that is used commonly to protect the integrity of electronic court documents in the courthouses of this country." 04-CV-25 1. Richard Zorza, Esq.: The ideal rule would authorize mandatory e-filing for lawyers, but leave it optional for unrepresented parties. Even if a local rule purports to adopt more limited exceptions, they may not be adequate to protect the rights of those who have difficulty using electronic filing. The exceptions may be vague; they may be discouraging; they may provide alternative filing methods that are impracticable or expensive; they may not address cost problems "in dealing with a fee based system," address the problems of those with physical or other disabilities, recognize religious objections, help the technologically challenged, or recognize the situation of those incarcerated; and include a general "good cause" exception that does not reassure.
Finally, consider the present provision in Civil Rule 5(e) that prohibits the clerk from refusing to accept a paper for filing solely because it is not presented in proper form - does that require that a paper be accepted in paper form despite a mandatory e-filing rule?
B. Rule 50(b)
1. Discussion
The Advisory Committee recommends approval for adoption of amended Rule 50(a) and (b).
Proposed amendments of Rule 50(b) were published in August 2004. The first would permit renewal after trial of any Rule 50(a) motion for judgment as a matter of law, deleting the requirement that a motion made before the close of the evidence be renewed at the close of all the evidence.
Separately, the proposed amendment adds a time limit for renewing a motion for judgment as a matter of law after the jury has failed to return a verdict on an issue addressed by the motion. Style revisions of Rule 50(a) were published at the same time.
The few comments made during the public comment period did not raise any new issues.
The Committee unanimously recommends that the amendments be recommended to the Judicial Conference for adoption.
The first proposed amendment addresses the problem that arises when a party moved for judgment as a matter of law before the close of all the evidence, failed to renew the motion at the close of all the evidence, then filed a postverdict motion renewing the motion for judgment as a matter of law. The appellate decisions have begun to permit slight relaxations of the requirement that a postverdict motion be supported by- be a renewal of - a motion made at the close of all the evidence. These are departures, however, made to avoid harsh results that seemed required by the current rule language. The departures come at the price of increasingly uncertain doctrine and practice and may invite more frequent appeals. Other courts adhere to the rule's language, holding that a motion at the close of all the evidence was necessary even if the party had made an earlier motion based on the same grounds.
The proposed amendment deletes the requirement of a motion at the close of all the evidence, permitting renewal of any Rule 50(a) motion for judgment as a matter of law made during trial. The proposed amendment reflects the belief that a motion made during trial serves all the functional needs sewed by a motion at the close of all of the evidence. As now, the posttrial motion renews the trial motion and can be supported only by arguments made to support the trial motion. The opposing party has had clear notice of the asserted deficiencies in the case and a final opportunity to correct them. Satisfying these functional purposes equally satisfies Seventh Amendment concerns.
Separately, the proposed amendment also provides a time limit for renewing a motion for judgment as a matter of law after the jury has failed to return a verdict on an issue addressed by the motion. The Advisory Committee agenda has camed for some years the question whether to revise Rule 50(b) to establish a clear time limit for renewing a motion for judgment as a matter of law after the jury has failed to return a verdict. The question was raised by Judge Stotler while she chaired the Standing Committee. The problem appears on the face of the rule, which seems to allow a motion at the close of the evidence at the first trial to be renewed at any time up to ten days after judgment is entered following a second (or still later) trial. It would be folly to disregard the sufficiency of the evidence at a second trial in favor of deciding a motion based on the evidence at the first trial, and unwise to allow the question to remain open indefinitely during the period leading up to the second trial. There is authority saying that the motion must be renewed ten days after the jury is discharged. See C. Wright & A. Miller, Federal Practice & Procedure: Civil 2d, 5 2357, p. 353. This authority traces to the 1938 version of Rule 50(b), which set the time for a judgment n.0.v.
motion at ten days after the jury was discharged if a verdict was not returned. This provision was deleted in 1991, but the Committee Note says only that amended Rule 50(b) "retains the former requirement that a post-trial motion under the rule must be made within 10 days after entry of a contrary judgment." Research into the Advisory Committee deliberations that led to the 1991 amendment has failed to show any additional explanation. It now seems better to restore the 1991 deletion.
2. Proposed Amended Rule 50 and Committee Note Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during - a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. the court may:
/A) resolve the issue against the party; and
JB) mant - a motion for judgment - as a matter of law against the party on a claim or defense that, under the controlling law. can be maintained or defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment soud~t and the law and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial;
Alternative Motion for New Trial. If- the court does not grant a motion for judgment as a matter of law made d under subdivision (a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after the entry of judgment or-if the motion addresses a jury issue not decided by a verdict-no later than 10 days after the jury was discharged. The movant may alternatively request a new trial or join a motion for a new trial under Rule 59.
In ruling on a renewed motion, the court may:
(I) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
Committee Note
The language of Rule 50(a) has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
Rule 50(b) is amended to permit renewal of any Rule 50(a) motion for judgment as a matter of law, deleting the requirement that a motion be made at the close of all the evidence. Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion. The earlier motion informs the opposing party of the challenge to the sufficiency of the evidence and affords a clear opportunity to provide additional evidence that may be available. The earlier motion also alerts the court to the opportunity to simplify the trial by resolving some issues, or even all issues, without submission to the jury. This fulfillment of the functional needs that underlie present Rule 50(b) also satisfies the Seventh Amendment. Automatic reservation of the legal questions raised by the motion conforms to the decision in Baltimore & Carolina Line v. Redman, 297 U.S. 654 (1935).
This change responds to many decisions that have begun to move away from requiring a motion for judgment as a matter of law at the literal close of all the evidence. Although the requirement has been clearly established for several decades, lawyers continue to overlook it. The courts are slowly working away from the formal requirement. The amendment establishes the functional approach that courts have been unable to reach under the present rule and makes practice more consistent and predictable.
Many judges expressly invite motions at the close of all the evidence. The amendment is not intended to discourage this useful practice.
Finally, an explicit time limit is added for making a posttrial motion when the trial ends without a verdict or with a verdict that does not dispose of all issues suitable for resolution by verdict. The motion must be made no later than 10 days after the jury was discharged.
3. Changes Made After Publication and Comment
This recommendation modifies the version of the proposal as published. The only changes made in the rule text after publication are matters of style. One sentence in the Committee Note was changed by adopting the wording of the 1991 Committee Note describing the grounds that may be used to support a renewed motion for judgment as a matter of law. A paragraph also was added to the Committee Note to explain the style revisions in subdivision (a). The changes from the published rule text are set out below.
Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings*
(a) Judgment as a Matter of Law.
(I) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
'Changes from the proposal published for public comment shown by double underlining new material and striking through omitted matter.
(A) t)etffmine resolve the issue against the party; and
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under subdivision (a), the court isrfeemcxt considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion.
summary of Comments: Rule 50(b)
04-CV-109. Federal Civil Procedure Committee, American College of Trial Lawyers: There is no Committee consensus. "Some of our members support the notion of removing traps for the unwary; others believe that it is not unreasonable to require that parties be wary of and follow the rules, and the rule as it exists serves a salutary purpose of permitting the trial court the opportunity to correct its own errors."
Federal Magistrate Judges Assn., 04-CV- 127: Supports the proposal. "The present Rule is a trap for the unwary." The motion at the close of all the evidence "is usually just a formality, but * * * can result in a harsh result. * * * Since the motion can only be renewed, but not added to, there is no unfairness to the party opposing the motion."
04-CV-128. Gregory B. Breedlove, Esq.. for Cuninfiam, Bounds. Yance, Crowder & Brown, L.L.C.: A motion should be required at the close of all the evidence because "any deficiency in the evidence at an earlier stage of the proceeding may have been cured by the time all the evidence is in. * * * By the close of the evidence, the plaintiff might cure any such deficiency either through cross-examination of a defense witness or through rebuttal testimony." The proposed change is not justified by the argument that parties continue to fail to meet the close-of-all-the-evidence requirement. It is not necessarily a bad thing that courts allow relief from the requirement in some circumstances, but this should not be generalized in the rule.
04-CV- 174, Committee on Federal Courts, State Bar of California: Supports both proposed amendments. Allowing renewal after trial of any Rule 50(a) motion made during trial "serves all the functional needs" and "address[es] conflicting views by the courts." Setting a time limit to renew after the jury fails to return a verdict "would restore the 199 1 deletion - and clarity - to the Rule."
04-CV-203, United States Department of Justice: "[S]upports the proposed amendment. This is a fair and practical solution to an issue that can confuse practitioners."
04-CV-218, U.S. Courts Committee, State Bar of Michigan: "[E]ndorses the proposed amendments to Rule 50 for the reasons set forth in the report."
C. Rules 16,26,33,34,37,45, and Form 35
1. Introduction
Over five years ago, the Advisory Committee began examining whether the discovery rules could better accommodate discovery directed at information generated by, stored in, retrieved from, and exchanged through, computers. The proposed amendments published for comment in August 2004 resulted from an extensive and intensive study of such discovery. That study included several mini-conferences and one major conference, bringing together lawyers, academics, judges, and litigants with a variety of experiences and viewpoints. The Committee also sought out experts in information technology and heard from those involved in the rapidly expanding field of providing electronic discovery services to lawyers and litigants.
Through this study, the Committee reached consensus on two points. First, electronically stored information has important differences from information recorded on paper. The most salient of these differences are that electronically stored information is retained in exponentially greater volume than hard-.copy documents; electronically stored information is dynamic, rather than static; and electronically stored information may be incomprehensible when separated from the system that - created it. Second, these differences are causing problems in discovery that rule amendments can helpfully address.
In August 2004, the Committee published five categories of proposed amendments: amending Rules 16 and 26(f) to provide early attention to electronic discovery issues; amending Rule 26(b)(2) to provide better management of discovery into electronically stored information that is not reasonably accessible; amending Rule 26(b)(5) to add a new provision setting out a procedure for assertions of privilege after production; amending Rules 33 and 34 to clarify their application to electronically stored information; and amending Rule 37 to add a new section to clarify the application of the sanctions rules in a narrow set of circumstances distinctive to the discovery of electronically stored information. In addition, Rule 45 was to be amended to adapt it to the changes made in Rules 26-37.
At the three public hearings held in 2005, 74 witnesses testified, many of whom also submitted written comments. An additional 1 80 written comments were submitted. The Committee revised the proposed rules amendments and note language in light of the public comments. The Committee unanimously recommends that the Standing Committee approve the proposed amendments to Rules 16, 26(b)(5)(B), 26(f), 33, 34, 45, and Form 35, as well as a conforming amendment to Rule 26(a). All but two members of the Committee voted in favor of recommending that the Standing Committee approve the proposed amendments to Rules 26(b)(2) and 37(f). The Committee unanimously recommends that the Standing Committee approve the corresponding changes to Rule 45 except for the change that tracks proposed Rule 26(b)(2), and all but two members of the Committee recommend that the Standing Committee approve this portion of proposed amendment Rule 45. This introduction sets out a brief background of the Committee's work and discusses each of the proposed amendments.
When the 2000 amendments were in their early stages of consideration, it was very helpful to step back and consider what brought the Committee to that point. In a 1997 conference held at Boston College Law School - a meeting very similar in purpose to the 2003 conference on electronic discovery held at the Fordham University School of Law - Professors Stephen Subrin and Richard Marcus presented papers on the historical background of the discovery rules. Some highlights of their papers usefully put the present issues into perspective and context.
Before the civil rules became law in 1938, discovery in both law and equity cases in the federal courts had been extremely limited. When the Committee deliberated on the liberal discovery rules that Professor Edson Sunderland drafted, they raised the concern that expanded discovery would force settlements for reasons and on terms that related more to the costs of discovery than to the merits of the case, a concern raised frequently in the context of electronic discovery.' But the debates did not focus on discovery. Instead, the focus was on issues of national uniformity and separation of powers.
In 1946 and 1970, amendments to the discovery rules continued to expand the discovery devices. The 1970 amendments were what Professor Marcus has called the high-water mark of "party-controlled discovery.'" Those amendments included the elimination of the requirement for a motion to obtain document production and of the good cause standard for document production. Since the "high-water mark," the discovery rules have been amended in 1980,1983,1993, and 2000, to provide more effective means for controlling the discovery devices. In 1980, the Committee made the first change designed to increase judicial supervision over discovery, adding a provision that allowed counsel to seek a discovery conference with the court. The Committee considered, and rejected, a proposal to narrow the scope of discovery from "relevant to the subject matte? to "relevant to the issues raised by the claims or defenses," and to limit the number of interrogatories. The public comment that proposal generated was similar in tone and in approach to some of the comments on certain of the electronic discovery proposals published in August 2004. Many protested any narrowing of discovery as inimical to the basic premise of American litigation; others protested that the Committee had not gone far enough in restricting discovery and controlling the costs and delay it caused; yet others womed that the Committee would feel 'Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 Boston Coll. L. Rev. 691, 730 (1998).
'Marcus, Discovery Containment Redux, 39 Boston Coll. L. Rev. 747,749 (1 998).
"pressure" to approve rules In the face of the vigorous debate, the Committee withdrew these proposals and submitted what then-chair Judge Walter Mansfield characterized as "watered down" proposals. The scope change rejected in 1980 did become law, but not until 2000, and then in a modification that emphasized the supervisory responsibility of the court.
Despite an institutional bias against frequent rule changes, the lack of meaningful amendments in 1980 resulted in significant amendments three years later. The 1983 amendments marked a significant shift toward greater judicial involvement in all pretrial preparation, most particularly in the discovery process. The amendments expanded Rule 16 case-management orders; deleted the final sentence of Rule 26(a), which had said that "[unless the court orders otherwise under subdivision (c) of this rule, the frequency and use of these methods is not limited; and added the paragraph to Rule 26@) directing the court to limit disproportionate discovery. The newly-appointed reporter to the Advisory Committee, Professor Arthur Miller, described these changes as a "1 80 degree shift in orientation." Yet, as Professor Miller pointed out in his written submission to the Committee endorsing the proposed electronic discovery amendments, the 1983 amendments turned out not to be effective by themselves to calibrate the amount of discovery to the needs of particular cases.4
In 1993, continued unhappiness about discovery costs and related litigation delays led to a - package of proposals that included mandatory broad initial disclosures (with a local rule opt-out feature added in response to vigorous criticism) and presumptive limits on the number of interrogatories and depositions. In art, these amendments were "designed to give teeth to the proportionality provisions added in 1983."' In 2000, the initial disclosure obligations were cut back and made uniform, and Rule 26@)(l) was changed to limit the scope of party-controlled discovery to matters "relevant to the claim or defense of any party," allowing discovery into "the subject matter involved in the action" only on court order for good cause.
During the study that led to the 2000 amendments, the Advisory Committee became aware of problems relating to electronic discovery. The Committee was urged by lawyers, litigants, and a number of organized bar groups to examine these problems. In 1999, when the 2000 proposals were recommended for adoption following the public comment period, the Committee fully understood that its work was incomplete. In his 1999 report to the Standing Committee recommending adoption of the 2000 amendments, Judge Niemeyer observed that since the work on the proposals had begun in 1996, "the Committee. . . kept its focus on the long-range discovery issues that will confront it in the emerging information age. The Committee recognized that it will be faced with the task of devising mechanisms 3~arcus, 39 Boston Coll. L. Rev. at 770.
' Prof Arthur Miller, 04-cv-221.
' Marcus, Discovery Containment, 39 Boston Coll. L. Rev. at 766.
for providing full disclosure in a context where potential access to information is virtually unlimited and in which full discovery could involve burdens far beyond anything justified by the interests of the parties to the litigation. While the tasks of designing discovery rules for an information age are formidable and still face the Committee, the mechanisms adopted in the current proposals begin the establishment of a framework in which to work." The present electronic discovery proposals grow out of the Committee's work on the 2000 amendments and in many ways continue that work. As noted in the report to the Standing Committee in 1999, the Committee's efforts leading to the 2000 amendments focused on the "architecture of discovery rules" to determine whether changes can be effected to reduce the costs of discovery, to increase its efficiency, to increase uniformity of practice, and to encourage the judiciary to participate more actively in case management. The proposed amendments to make the rules apply better to electronic discovery problems have the same focus.
The historical perspective is a reminder that any proposal to add or strengthen rule provisions for what Professor Marcus calls "discovery containment" produces significant debate. The vigor, volume, and themes of the public comment on the August 2004 electronic discovery proposals are not new to proposed discovery rule amendments. The debates over the amendments that became effective in 1983, 1993, and 2000 were vigorous, with many favoring liberal party-controlled discovery and many advocating more effective tools for discovery management and limits. Such debate is not in itself a sign that the proposals are fundamentally flawed. It is right to be concerned if the proposals are only supported by a narrow segment of the bench or bar. But it is not surprising to h d that proposals to increase judicial involvement in discovery or to encourage the application of the existing proportionality factors would be opposed more by one side of the bar than the other.
Without understating the nature or depth of the concerns raised in response to specific proposals, discussed at length below, it is useful to note some points of agreement. There was a high level of support for changes to the federal rules to recognize and accommodate electronic discovery. Although there was certainly disagreement as to the proposed amendments to Rules 26(b)(2) and 37(f), there was also support h m broad-based organizations that do not r resent a reflexive plaintiff or defense view, 7' such as the American Bar Association Section of Litigation, the Federal Bar Council,~ and the New York State Bar Association Commercial and Federal Litigation Section.' Many of the comments criticized aspects of the published proposals that have now been revised. As noted, after the comment period, all but two members of the Advisory Committee approved these proposed amendments as revised in light of the comments. The proposals calling for early attention to electronic discovery and addressing problems in the form of producing electronically stored information received broad support from the bar and the unanimous approval of the Advisory Committee.
The historical review also provides a useful context for considering the question of timing. The Advisory Committee has a history of carefully considering rule amendments and, when appropriate, withdrawing proposed amendments after public comment. The class action proposals of 1996 are a good example. The history of discovery amendments in particular shows great caution. The most prominent example is the 1978 decision to defer the "scope" proposal because there was vigorous opposition, as well as vigorous support. That decision to defer was criticized on the ground that it would significantly delay the proposal. A version of the scope limitation did become effective - twenty years later. It is always tempting to defer action because more time brings more information, particularly in an area of ongoing technological change. But defening has costs. The calendar of the rules enabling process makes any delay a significant one. As long ago as the 1998-99 hearings on what became the discovery amendments of 2000, lawyers were urging the Committee to proceed with alacrity in rulemaking for ediscovery.
The need for rulemaking now in this area is reflected in the local rules and state rules that have been enacted and the growing number of such rules that have been proposed. Many of these local rule efforts have been deferred because of the proposals to amend the national rules, but the perceived need for such rules means that they will not remain in check indefinitely. The 1993 amendments led in part - to the 2000 amendments, teaching us much about the problems of local rulemaking in areas that the national discovery rules address, problems that we do not want to create in the area of electronic discovery. And the possibility of technological change will always exist; there is no reason to think that stability on that front will arrive any time soon.
The Committee has been studying electronic discovery for the last five years. We have learned a great deal, reflected in the rule proposals and the refinements made since publication. Those proposals and refinements are summarized below.
2. The Specific Proposals
i. Early Attention to Electronic Discovery Issues: Rules 16,26(a), 26(f), and Form 35
Introduction
The comments consistently applauded the directives in Rule 16(b) and Rule 26(f) for the parties to discuss electronically stored information in cases that involve such discovery and to include these topics in the report to the court, and for the court to include these topics in its scheduling orders. The overall directive is broad, but specific provisions focus on three areas recognized as frequent sources of difficulty in electronic discovery: the form of producing electronically stored information in discovery; preserving information for the litigation; and the assertion of privilege and work-product protection claims.
The proposed amendments that direct early attention to electronic discovery issues, as published, did not include a revision to Rule 26(a)(l), although the amendments to Rule 26(f) referred to disclosures as well as discovery of electronically stored information. The Committee approved a proposed conforming amendment to Rule 26(a), making the Rule 26(a)(l) description of information subject to disclosure requirements consistent with the addition of electronically stored information to the discovery rules. Present Rule 26(a)(l) is redundant in requiring disclosure of both certain "documents" and "data compilations," because the present version of Rule 34 makes "data compilation" a subset of "documents." Present Rule 26(a)(l) is potentially inconsistent with the proposed revision of Rule 34, which adds "electronically stored information" as a category separate from "documents." Amending Rule 26(a)(l) to make it apply to "documents and electronically stored information," and deleting the words "data compilations," cures this inconsistency. Because Rule 34(a) is revised to distinguish between "documents" and "electronically stored information," revising Rule 26(a)(l) to conform to this distinction removes the argument that there is a duty to provide in discovery, but not to disclose, electronically stored information.
One concern initially raised about adding electronically stored information to Rule 26(a)(l) was that it could require parties to locate and review such information too early in the case. Such information, often voluminous and dispersed, can be burdensome to locate and review, and early in the case the parties may not be able to identify with precision the information that will be called for in discovery. The Committee concluded that this concern was not an argument against this conforming amendment. The disclosure obligation has been read as applying to electronically stored information and will continue to apply. The obligation does not force a premature search, but only requires disclosure, either initially or by way of supplementation, of information that the disclosing party has decided it may use to support its case.
The Committee decided against revising Rule 26(a)(3) to include "electronically stored information." Rule 26(a)(3) applies "in addition to the disclosures required by Rule 26(a)(l)" and is directed to identifying exhibits for trial. Electronically stored information is included in "each document or other exhibit" that the current rule requires to be identified in pretrial disclosures.
Proposed amended Rule 26(f) states that the parties are to discuss "any issues relating to preserving discoverable information." Some comments urged that this directive should be downgraded to the Note, in part out of concern that calling for discussion of the question will promote early applications for preservation orders. Most comments supported the inclusion of preservation as a topic to be discussed early in the case. The dynamic nature of electronically stored information, and the fact that routine operation of computer systems changes and deletes information, make it important to address preservation issues early in cases involving discovery of such information. The Committee decided not to change the published rule language, which includes not only electronically stored information but all forms of information. In response to the concerns raised in the comment period about preservation orders, the Note has been revised to state that preservation orders entered over objections should be narrowly tailored and that preservation orders should rarely be issued on ex parte applications.
Proposed new Rule 26(f)(3) directs parties to discuss "any issues relating to disclosure or - discovery of electronically stored information, including the form or forms in which it should be produced." Form 35 is amended to provide that in the report to the court of their proposed discovery plan, the parties include their proposals for disclosure or discovery of electronically stored information.
Rule 16(b)(5) provides that the scheduling order the court enters may include "provisions for disclosure or discovery of electronically stored information." The comments emphasized the importance of discussing these topics early in the case, to identify disputes before costly and time-consuming searches and production occur. Only one change is proposed to this part of the published proposals. Many comments noted that more than one form of production might be appropriate in a case, because a party may store different information in different forms. Accordingly, this proposed amendment is revised to state that the parties should discuss "any issues relating to. . . electronically stored information, including the form or forms in which it should be produced." Consistent changes are made in other proposed amendments addressing the form of production as well.
Proposed new Rule 26(f)(4) adds issues relating to the assertion of privilege and work-product protection to the list of topics to be addressed in the parties' initial conference. For years, the Committee has wrestled with how to address the problem of privilege waivers within the rules. The Committee began this work in response to concerns over the expense and delay attendant to reviewing hard-copy documents for privilege and generating a privilege log. During the study of electronic discovery, the Committee learned that reviewing electronically stored information for privilege and work product protection adds to the expense and delay, and risk of waiver, because of the added volume, the dynamic nature of the information, and the complexities of locating potentially privileged information. Metadata and embedded data are examples of such complexities; they may contain privileged communications, yet are not visible when the information is displayed on a computer monitor in ordinary use or printed on paper. Parties can ameliorate some of the costs and delays created by the steps necessary to avoid waiving privilege or work-product protection during discovery through agreements that allow the assation of privilege or work production protection after documents or electronically stored information are produced. Including this topic among those to be discussed encourages early attention to the problem and facilitates efforts to reach such agreements. Form 35 is amended to provide that if the parties have agreed to an order regarding claims of privilege or protection as trial-preparation material asserted after production, they are to include a description of the proposed order provisions in their report to the court.
Rule 16(b)(6) is amended to state that if the parties have reached an agreement for "asserting claims of privilege or protection as trial-preparation material after production," the court may include those agreements in the scheduling order.
The proposed rule as published described the topic that the parties should discuss as whether, if the parties agreed, the court should enter an order protecting the right to assert privilege after production.
During the comment period, some expressed uneasiness about the language that the court enter an order "protecting" against waiver of privilege because it is not clear that this protection is effective against third parties. The Committee has revised the proposed rule and note language to meet these concerns, without changing the substance of what this aspect of the parties' discovery planning conference is to include.
Many comments urged the Committee to include work-product protection as well as privilege within this rule, as well as proposed Rule 26(b)(5)(B). Although the consequences of waiver are less acute for work product protection than for attorney-client privilege, many documents and electronically stored information involve both and issues of waiver frequently involve both. The Committee decided to amend the published proposed rule to include both privilege and work-product protection, using the label for such protection that appears elsewhere in the discovery rules, L'trial-preparation materials."
The Proposed Rules and Committee Notes
The Advisory Committee recommends approval for adoption of amended Rules 16(b), 26(a), 26(f), and Form 35.
Rule 1600)
The Committee recommends approval of the following amendment:
Rule 16. Pretrial Conferences; Scheduling; Management
* * * * *
(b) Scheduling and Planning. Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.
The scheduling order also may include
(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(l) and of the extent of discovery to be permitted;
(5) provisions for disclosure or discovery of electronically stored information;
(6) any ameements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production;
(25) the date or dates for conferences before trial, a final pretrial conference, and trial; and
(86) any other matters appropriate in the circumstances of the case.
The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.
* * * * *
Committee Note
The amendment to Rule 16(b) is desimed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur. Rule 26(f) is amended to direct the parties to discuss discovery of electronically stored information if such discovery is contemplated in the action. Form 35 is amended to call for a report to the court about the results of this discussion. In many instances, the court's involvement early in the litigation will help avoid difficulties that might othmise arise.
Rule 16(b) is also amended to include among the topics that may be addressed in the scheduling order any agreements that the parties reach to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection. Rule 26(f) is amended to add to the discovery plan the parties7 proposal for the court to enter a case management or other order adopting such an agreement. The parties may agree to various arrangements. For example, they may agree to initial provision of requested materials without waiver of privilege or protection to enable the party seeking production to designate the materials desired or protection for actual production, with the privilege review of only those materials to follow. Alternatively, they may agree that if privileged or protected information is inadvertently produced, the producing party may by timely notice assert the privilege or protection and obtain return of the materials without waiver. Other arrangements are possible. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial preparation material.
An order that includes the parties’ agreement may be helpful in avoiding delay and excessive cost in discovery. See Manual for Complex Litigation (4th) 5 1 1.446. Rule 16(b)(6) recognizes the propriety of including such agreements in the court's order. The rule does not provide the court with authority to enter such a case-management or other order without party agreement, or limit the court's authority to act on motion.
Changes Made After Publication and Comment
This recommendation is of a modified version of the proposal as published. Subdivision (b)(6) was modified to eliminate the references to "adopting" agreements for 'protection against waiving" privilege. It was feared that these words might seem to promise greater protection than can be assured. In keeping with changes to Rule 26(b)(5)(B), subdivision (b)(6) was expanded to include agreements for asserting claims of protection as trial-preparation materials. The Committee Note was revised to reflect the changes in the rule text.
The proposed changes from the published rule are set out below.
Rule 16. Pretrial Conferences; Scheduling; Management*
* * * * *
(b) Scheduling and Planning.
* * * * *
The scheduling order may also include
* * * * *
(6) rdopkm any agreements the parties reach - for asserting claims of privilege or of protection as trial-preparation material after production;
* * * * *
Rule 26(a)
The Committee recommends approval of the following amendment:
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter.
(I) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(l)(E), or to the extent otherwise
*Changes 6-om the proposal published for public comment shown by double underlining new material and striking through omitted matter.
stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:
(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;
(B) a copy of, or a description by category and location of, all documents, electronically stored information, data . . mmpd&mq and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
Committee Note
Subdivision (a). Rule 26(a)(l)(B) is amended to parallel Rule 34(a) by recognizing that a party must disclose electronically stored information as well as documents that it may use to support its claims or defenses. The term "electronically stored information" has the same broad meaning in Rule 26(a)(l) as in Rule 34(a). This amendment is consistent with the 1993 addition of Rule 26(a)(l)(B). The tern "data compilations" is deleted as unnecessary because it is a subset of both documents and electronically stored information.
Changes Made After Publication and Comment
As noted in the introduction, this provision was not included in the published rule. It is included as a conforming amendment, to make Rule 26(a)(l) consistent with the changes that were included in the published proposals.
Rule 26(f)
The Committee recommends approval of the following amendments to Rule 26(f).
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
* * * * *
(f) Conference of Parties; Planning for Discovery. Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(l)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(l), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties' views and proposals concerning:
(I) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(l) were made or will be made;
(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;
any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
any issues relating to claims of privilege or of protection as trial-preparation material, including- if the parties agree on a procedure to assert such claims after production - whether to ask the court to include their agreement in an order;
(53) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c).
* * * * *
Committee Note
Subdivision (f). Rule 26(Q is amended to direct the parties to discuss discovery of electronically stored information during their discovery-planning conference. The rule focuses on "issues relating to disclosure or . discovery of electronically stored information"; the discussion is not required in cases not involving electronic discovery, and the amendment imposes no additional requirements in those cases.
When the parties do anticipate disclosure or discovery of electronically stored information, discussion at the outset may avoid later difficulties or ease their resolution.
When a case involves discovery of electronically stored information, the issues to be addressed during the Rule 26(Q conference depend on the nature and extent of the contemplated discovery and of the parties’ information systems. It may be important for the parties to discuss those systems, and accordingly important for counsel to become familiar with those systems before the conference. With that information, the parties can develop a discovery plan that takes into account the capabilities of their computer systems. In appropriate cases identification of, and early discovery from, individuals with special knowledge of a party's computer systems may be helpful.
The particular issues regarding electronically stored information that deserve attention during the discovery planning stage depend on the specifics of the given case. See Manual, for Complex Litigation (4th) fj 40.25(2) (listing topics for discussion in a proposed order regarding meet-and-confer sessions). For example, the parties may specify the topics for such discovery and the time period for which discovery will be sought. They may identify the various sources of such information within a party's control that should be searched for electronically stored information. They may discuss whether the information is reasonably accessible to the party that has it, including the burden or cost of retrieving and reviewing the information. See Rule 26@)(2)(B). Rule 26(f)(3) explicitly directs the parties to discuss the form or forms in which electronically stored information might be produced. The parties may be able to reach agreement on the forms of production, making discovery more efficient. Rule 34@) is amended to permit a requesting party to specify the form or forms in which it wants electronically stored information produced. If the requesting party does not specify a form, Rule 34@) directs the responding party to state the forms it intends to use in the production. Early discussion of the forms of production may facilitate the application of Rule 34(b) by allowing the parties to determine what forms of production will meet both parties' needs. Early identification of disputes over the forms of production may help avoid the expense and delay of searches or productions using inappropriate forms.
Rule 26(f) is also amended to direct the parties to discuss any issues regarding preservation of discoverable information during their conference as they develop a discovery plan. This provision applies to all sorts of discoverable information, but can be particularly important with regard to electronically stored information. The volume and dynamic nature of electronically stored information may complicate preservation obligations. The ordinary operation of computers involves both the automatic creation and the automatic deletion or overwriting of certain information. Failure to address preservation issues early in the litigation increases uncertainty and raises a risk of disputes.
The parties' discussion should pay particular attention to the balance between the competing needs to preserve relevant evidence and to continue routine operations critical to ongoing activities. Complete or broad cessation of a party's routine computer operations could paralyze the party's activities. Cf: Manual. for Complex Litigation (4th) 9 1 1.422 ("A blanket preservation order may be prohibitively expensive and unduly burdensome for parties dependent on computer systems for their day-to-day operations.") The parties should take account of these considerations in their discussions, with the goal of agreeing on reasonable preservation steps.
The requirement that the parties discuss preservation does not imply that courts should routinely enter preservation orders. A preservation order entered over objections should be narrowly tailored.
Ex parte preservation orders should issue only in exceptional circumstances.
Rule 26(f) is also amended to provide that the parties should discuss any issues relating to assertions of privilege or of protection as trial-preparation materials, including whether the parties can facilitate discovery by agreeing on procedures for asserting claims of privilege or protection after production and whether to ask the court to enter an order that includes any agreement the parties reach. The Committee has repeatedly been advised about the discovery difficulties that can result from efforts to guard against waiver of privilege and work-product protection. Frequently parties find it necessary to spend large amounts of time reviewing materials requested through discovery to avoid waiving privilege. These efforts are necessary because materials subject to a claim of privilege or protection are often difficult to identify. A failure to withhold even one such item may result in an argument that there has been a waiver of privilege as to all other privileged materials on that subject matter. Efforts to avoid the risk of waiver can impose substantial costs on the party producing the material and the time required for the privilege review can substantially delay access for the party seeking discovery.
These problems often become more acute when discovery of electronically stored information is sought. The volume of such data, and the informality that attends use of e-mail and some other types of electronically stored information, may make privilege determinations more difficult, and privilege review correspondingly more expensive and time consuming. Other aspects of electronically stored information pose particular difficulties for privilege review. For example, production may be sought of information automatically included in electronic files but not apparent to the creator or to readers. Computer programs may retain draft language, editorial comments, and other deleted matter (sometimes refmed to as "embedded data" or "embedded edits") in an electronic file but not make them apparent to the reader. Information describing the history, tracking, or management of an electronic file (sometimes called "metadata") is usually not apparent to the reader viewing a hard copy or a screen image. Whether this information should be produced may be among the topics discussed in the Rule 26(f) conference. If it is, it may need to be reviewed to ensure that no privileged information is included, further complicating the task of privilege review.
Parties may attempt to minimize these costs and delays by agreeing to protocols that minimize the risk of waiver. They may agree that the responding party will provide certain requested materials for initial examination without waiving any privilege or protection - sometimes known as a "quick peek." The requesting party then designates the documents it wishes to have actually produced. This designation is the Rule 34 request. The responding party then responds in the usual course, screening only those documents actually requested for formal production and asserting privilege claims as provided in Rule 26(b)(5)(A). On other occasions, parties enter agreements - sometimes called "clawback agreements"- that production without intent to waive privilege or protection should not be a waiver so long as the responding party identifies the documents mistakenly produced, and that the documents should be returned under those circumstances. Other voluntary arrangements may be appropriate depending on the circumstances of each litigation. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial-preparation material.
Although these agreements may not be appropriate for all cases, in certain cases they can facilitate prompt and economical discovery by reducing delay before the discovering party obtains access to documents, and by reducing the cost and burden of review by the producing party. A case-management or other order including such agreements may further facilitate the discovery process. Form 35 is amended to include a report to the court about any agreement regarding protections against inadvertent forfeiture or waiver of privilege or protection that the parties have reached, and Rule 16(b) is amended to recognize that the court may include such an agreement in a case-management or other order. If the parties agree to entry of such an order, their proposal should be included in the report to the court.
Rule 26(b)(5)(B) is added to establish a parallel procedure to assert privilege or protection as trial-preparation material after production, leaving the question of waiver to later determination by the court.
Changes Made After Publication and Comment
The Committee recommends a modified version of what was published. Rule 26(f)(3) was expanded to refer to the form "or forms" of production, in parallel with the like change in Rule 34. Different forms may be suitable for different sources of electronically stored information.
The published Rule 26(f)(4) proposal described the parties' views and proposals concerning whether, on their agreement, the court should enter an order protecting the right to assert privilege after production. This has been revised to refer to the parties' views and proposals concerning any issues relating to claims of privilege, including - if the parties agree on a procedure to assert such claims after production -whether to ask the court to include their agreement in an order. As with Rule 16(b)(6), this change was made to avoid any implications as to the scope of the protection that may be afforded by court adoption of the parties' agreement.
Rule 26(f)(4) also was expanded to include trial-preparation materials.
The Committee Note was revised to reflect the changes in the rule text.
The changes from the published rule are shown below.
Rule 26. General Provisions Governing Discovery; Duty of Disclosure*
(f) Conference of Parties; Planning for Discovery. Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(l)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(l), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties' views and proposals concerning:
* * * * *
*Changes from the proposal published for public comment shown by double underlining new material and stdung through omitted matter.
(3) any issues relating to disclosure or discovery of electronically stored information, including the form - forms in which it should be produced; (4) any issues relating to claims of privilege or protection as trial-preparation material. including- if the parties a m on a procedure to assert such claims after production - whether to ask the court to include their agreement in an order;
*^
L U
* * * * *
Form 35
The Committee recommends conforming changes in Form 35, the parties' report to the court of their discovery plan.
Form 35. Report of Parties' Planning Meeting
* * * * *
3. Discovery Plan. The parties jointly propose to the court the following discovery plan: [Use separate paragraphs or subparagraphs as necessary if parties disagree.] Discovery will be needed on the following subjects: (brief description of subjects on which discovery will be needed) Disclosure or discovery of electronically stored information should be handled as follows: (brief description of parties' proposals) The parties have ameed to an order regarding claims of privilege or of protection as trial-preparation material asserted after production. as follows: (brief description of provisions of proposed order) All discovery commenced in time to be completed by (date) . [Discovery on (issue for early discovery) to be completed by (date) -1
Changes Made After Publication and Comment
The Committee recommends approval of Form 35 with modifications made from the published version, consistent with changes made to Rule 26(f). The changes are shown below.
Form 35. Report of Parties' Planning Meeting*
* * * * *
3. Discovery Plan. The parties jointly propose to the court the following discovery plan: * * * Disclosure or discovery of electronically stored information should be handled as follows: (brief description of parties' proposals)
. .
The parties have agreed to - an order regarding claims of privilege or of protection as trial preparation material asserted after production, as follows: (brief description of provisions of proposed order). * * *
'
*Changes from the proposal published for public comment shown by double underlining new material and striking through omitted matter.
ii. Discovery Into Electronically Stored Information that is Not Reasonably Accessible: Rule 26(b)(2)
Introduction
The Rule 26(b)(2)(B) proposal authorizes a party to respond to a discovery request by identifying sources of electronically stored information that are not reasonably accessible because of undue burden or cost. If the requesting party seeks discovery from such sources, the responding party has the burden to show that the sources are not reasonably accessible. Even if that showing is made, the court may order discovery if - after considering the limitations established by present Rule 26(b)(2) - the requesting party shows good cause. The court may specify conditions for the discovery.
Several changes have been made in the rule text to express more clearly the procedure established by the published proposal. The Committee Note is revised to describe more clearly the problems that the rule addresses. The changes both in rule text and Note draw from a large body of public testimony and comments that suggested better ways to implement the proposed procedure without changing the procedure established by the published language.
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The proposed rule has frequently been referred to as a "two-tier" system. It responds to distinctive problems encountered in discovery of electronically stored information that have no close analogue in the more familiar discovery of paper documents. Although computer storage often facilitates discovery, some forms of computer storage can be searched only with considerable effort. The responding party may be able to identify difficult-to-access sources that may contain responsive information, but is not able to retrieve the information - or even to determine whither any responsive information in fact is on the sources - without incumng substantial burden or cost. The difficulties in accessing the information may arise from a number of different reasons primarily related to the technology of information storage, reasons that are likely to change over time. Examples from current technology include back-up tapes intended for disaster recovery purposes that are often not indexed, organized, or susceptible to electronic searching; legacy data that remains from obsolete systems and is unintelligible on the successor systems; data that was "deleted" but remains in fragmented form, requiring a modem version of forensics to restore and retrieve; and databases that were designed to create certain information in certain ways and that cannot readily create very different kinds or forms of information.
Such difficulties present particular problems for discovery. A party may have a large amount of information on sources or in forms that may be responsive to discovery requests, but would require recovery, restoration, or translation before it could be located, retrieved, reviewed, or produced. At the same time, more easily accessed sources - whether computer-based, paper, or human - may yield all the information that is reasonably useful for the action. Lawyers sophisticated in these problems are developing a two-tier practice in which they first sort through the information that can be provided from easily accessed sources and then determine whether it is necessary to search the difficult-to-access sources.
In many circumstances, the two-tier approach will be worked out by negotiation. The Rule 26(b)(2)(B) amendment expressly incorporates the better practice as the method for judicial control when the parties cannot resolve the problem on their own. The amendment builds on the two-tier structure of scope of discovery defined in Rule 26(b)(l) and applies this structure to discovery of electronically stored information. The proposed rule recognizes a distinctive, recurring problem that electronically stored information presents for discovery and builds on the existing rules to facilitate judicial supervision when it is necessary to calibrate discovery to a particular case.
Much of the criticism during the public comment period focused on specific drafting problems in the published rule, including a lack of clarity in the term "not reasonably accessible," how that term and the "good cause" showing related to the existing Rule 26(b)(2) proportionality limits, and how a party designamtion or a court hding that information is not reasonably accessible related to preservation obligations. The proposed rule and Note have been revised to respond to the concerns identified.
The published rule required a party to identify potentially responsive "information" that is not reasonably accessible. The problem, however, is that a responding party cannot identify information without actually searching and retrieving it. The revised rule directs the party to identify the sources of information that may be responsive but is not reasonably accessible.
The published rule did not provide any guide to the considerations that bear on determining whether electronically stored information is not reasonably accessible. Many comments suggested that the test should be based on the burden and cost of locating, restoring, and retrieving potentially responsive information from the sources in which it is stored. The revised rule incorporates this test, which reflects the common understanding of the published proposal. The responding party may identify sources containing potentially responsive information that is not reasonably accessible "because of undue burden or cost." Once the responding party has identified a source of information that is not reasonably accessible, the published rule provided for a motion to compel discovery. The revision recognizes that the responding party may wish to resolve the issue by moving for a protective order. Among the reasons that may lead a responding party to raise the issue is to resolve whether, or the extent to which, it must preserve the information stored on the difficult-to-access sources until discoverability is resolved.
A finding that the responding party has shown that a source of information is not reasonably accessible does not preclude discovery; the court may order discovery for good cause. Many comments suggested that the "good cause" standard seemed to contemplate the limitations identified by parts (i), (ii), and (iii) of present Rule 26(b)(2). The revised text clarifies the "good cause" showing by expressly referring to consideration of these limitations.
The Committee Note is revised extensively to provide a clearer description of the two-tier procedure. It recognizes that in some cases a single proceeding may suffice both to find that a source is not reasonably accessible and also to determine whether good cause nonetheless justifies discovery and to set any conditions that should be imposed. But it also recognizes that proceedings may need to be staged if focused discovery is necessary to determine the costs and burdens in obtaining the information from the sources identified as not reasonably accessible, the likelihood of finding responsive information on such sources, and the value of the information to the litigation. In such circumstances, a finding that a source is not reasonably accessible may lead to further proceedings to determine whether there is good cause to order limited or extensive searches and the production of information stored on such sources.
The proposed amendment is modest. The public comments and testimony confirmed that parties conducting discovery, particularly when it involves large volumes of information, first look in the places that are likely to produce responsive information. Parties sophisticated in electronic discovery first look in the reasonably accessible places that are likely to produce responsive information. On that level, stating in the rule that initial production of information that is not reasonably accessible is not required simply recognizes reality. Under proposed Rule 260>)(2), this existing practice would continue; parties would search sources that are reasonably accessible and likely to contain responsive, relevant information, with no need for a court order. But in an improvement over the present practice, in which parties simply - do not produce inaccessible electronically stored information, the amendment requires the responding party to identify the sources of information that were not searched, clarifying and focusing the issue for the requesting party. In many cases, discovery obtained from accessible sources will be sufficient to meet the needs of the case. If information from such sources does not satisfy the requesting party, the proposed rule allows that party to obtain additional discovery from sources identified as not reasonably accessible, subject to judicial supervision.
One criticism leveled against the proposal is that it allows the responding party to "self-designate" information not produced because it is not reasonably accessible. All party-managed discovery and privilege invocation rests on "self-designation" to some extent. That is happening now, without the insights for the requesting party that the identification requirement provides. The responding party must disclose categories and types of sources of potentially responsive information that are not searched, enabling the requesting party to decide whether to challenge that designation.
Two other areas of concern were expressed during the comment period. One is the relationship to preservation. A second, related concern is that this proposal would lead corporations to make information inaccessible in order to frustrate discovery. As to the first concern, the Note is revised to clarify that the rule does not undermine or reduce common-law or statutory preservation obligations. The Committee Note includes a reminder that a party may be obliged to preserve information stored on sources it ha.4 identified as not reasonably accessible, but in keeping with the approach taken in proposed Rule 37(f) does not attempt to state or define a preservation obligation. As to the second concern, many witnesses and comments rejected the argument that the rule would encourage entities or individuals to "bury" information that is necessary or useful for business purposes or that regulations or statutes require them to retain. Moreover, the rule requires that the information identified as not reasonably accessible must be difficult to access by the producing party for all purposes, not for a particular litigation. A party that makes information "inaccessible~~ because it is likely to be discoverable in litigation is subject to sanctions now and would still be subject to sanctions under the proposed rule changes.
The Proposed Rule and Committee Note
Rule 26(b)(2)
The Committee recommends approval of the following amendment:
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
* * * * *
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
* * * * *
(2) Limitations.
(A) By order, the court may alter the limits in these rules on the number of depositions and interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
@) A party need not provide discovery of electronically stored information from sources that the par* identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26&)(2)(C). The court may specify conditions for the discovery.
(C) The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) 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. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule
Committee Note
Subdivision @)(2). The amendment to Rule 26@)(2) is designed to address issues raised by difficulties in locating, retrieving, and providing discovery of some electronically stored information.
Electronic storage systems often make it easier to locate and retrieve information. These advantages are properly taken into account in determining the reasonable scope of discovery in a particular case. But some sources of electronically stored information can be accessed only with substantial burden and cost. In a particular case, these burdens and costs may make the information on such sources not reasonably accessible.
It is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information. Information systems are designed to provide ready access to information used in regular ongoing activities.
They also may be designed so as to provide ready access to information that is not regularly used. But a system may retain information on sources that are accessible only by incurring substantial burdens or costs.
Subparagraph (B) is added to regulate discovery from such sources.
Under this rule, a responding party should produce electronically stored information that is relevant, not privileged, and reasonably accessible, subject to the (b)(2)(C) limitations that apply to all discovery.
The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.
A party's identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence. Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery.
The volume of - and the ability to search - much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties' discovery needs. In many circumstances the requesting party should obtain and evaluate the information from such sources before insisting that the responding party search and produce information contained on sources that are not reasonably accessible. If the requesting party continues to seek discovery of information from sources identified as not reasonably accessible, the parties should discuss the burdens and costs of accessing and retrieving the information, the needs that may establish good cause for requiring all or part of the requested discovery even if the information sought is not reasonably accessible, and conditions on obtaining and producing the information that may be appropriate.
If the parties cannot agree whether, or on what terms, sources identified as not reasonably accessible should be searched and discoverable information produced, the issue may be raised either by a motion to compel discovery or by a motion for a protective order. The parties must confer before bringing either motion. If the parties do not resolve the issue and the court must decide, the responding party must show that the identified sources of information are not reasonably accessible because of undue burden or cost. The requesting party may need discovery to test this assertion. Such discovery might take the form of requiring the responding party to conduct a sampling of information contained on the sources identified as not reasonably accessible; allowing some form of inspection of such sources; or taking depositions of witnesses knowledgeable about the responding party's information systems.
- Once it is shown that a source of electronically stored information is not reasonably accessible, the requesting party may still obtain discovery by showing good cause, considering the limitations of Rule 26(b)(2)(C) that balance the costs and potential benefits of discovery. The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case.
Appropriate considerations may include: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usellness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources.
The responding party has the burden as to one aspect of the inquiry - whether the identified sources are not reasonably accessible in light of the burdens and costs required to search for, retrieve, and produce whatever responsive information may be found. The requesting party has the burden of showing that its need for the discovery outweighs the burdens and costs of locating, retrieving, and producing the information. In some cases, the court will be able to determine whether the identified sources are not reasonably accessible and whether the requesting party has shown good cause for some or all of the discovery, consistent with the limitations of Rule 26(b)(2)(C), through a single proceeding or presentation. The good-cause determination, however, may be complicated because the court and parties may know little about what information the sources identified as not reasonably accessible might contain, whether it is relevant, or how valuable it may be to the litigation. In such cases, the parties may need some focused discovery, which may include sampling of the sources, to learn more about what burdens and costs are involved in accessing the information, what the information consists of, and how valuable it is for the litigation in light of information that can be obtained by exhausting other opportunities for discovery.
The good-cause inquiry and consideration of the Rule 26(b)(2)(C) limitations are coupled with the authority to set conditions for discovery. The conditions may take the form of limits on the amount, type, or sources of information required to be accessed and produced. The conditions may also include payment by the requesting party of part or all of the reasonable costs of obtaining information iiom sources that are not reasonably accessible. A requesting party's willingness to share or bear the access costs maybe weighed by the court in determining whether there is good cause. But the producing party's burdens in reviewing the information for relevance and privilege may weigh against permitting the requested discovery.
The limitations of Rule 26@)(2)(C) continue to apply to all discovery of electronically stored information, including that stored on reasonably accessible electronic sources.
Changes Made after Publication and Comment
This recommendation modifies the version of the proposed rule amendment as published. Responding to comments that the published proposal seemed to require identification of information that cannot be identified because it is not reasonably accessible, the rule text was clarified by requiring identification of sources that are not reasonably accessible. The test of reasonable accessibility was clarified by adding "because of undue burden or cost."
The published proposal refined only to a motion by the requesting party to compel discovery. The rule text has been changed to recognize that the responding party may wish to determine its search and potential preservation obligations by moving for a protective order.
The provision that the court may for good cause order discovery from sources that are not reasonably accessible is expanded in two ways.
It now states specifically that the requesting party is the one who must show good cause, and it refers to consideration of the limitations on discovery set out in present Rule 26(b)(2)(i), (ii), and (iii).
The published proposal was added at the end of present Rule 26(b)(2). It has been relocated to become a new subparagraph (B), allocating present Rule 26(b)(2) to new subparagraphs (A) and (C). The Committee Note was changed to reflect the rule text revisions. It also was shortened. The shortening was accomplished in part by deleting references to problems that are likely to become antique as technology continues to evolve, and in part by deleting passages that were at a level of detail better suited for a practice manual than a Committee Note.
The changes from the published proposed amendment to Rule 26(b)(2) are set out below.
Rule 26. General Provisions Governing Discovery; Duty of Disclosure*
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(2) Limitations.
*Changes from the proposal published for public comment shown by double underlining new material and striking through omitted matter.
(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion bpt)rt: to compel discovery or for a protective order, the reqmdmg party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may . .
nonetheless order discovery- h
such sources fisr if the requesting varty shows good cause, considering the limitations of Rule 26(b)(2)(C).& The court may specify hmm-ad conditions for the discovery.
(C) ....-
13
iii. Procedure For Asserting Claims of Privilege and Work Product Protection After Production: Rule 26(b)(5)
Introduction
Ever since the Committee began its intensive examination of discovery in 1996, a i?equent complaint has been the expense and delay that accompany privilege review. The Committee has long studied whether it could offer a rule that would helpfully address this problem, within the limitations of the Rules Enabling Act and 28 U.S.C. fj 2074(b). The Committee's more recent focus on electronic discovery revealed that the problems of privilege review are often more acute in that setting than with conventional discovery. The volume of electronically stored information responsive to discovery and the varying ways such information is stored and displayed make it more difficult to review for privilege than paper. The production of privileged material is a substantial risk and the costs and delay caused by privilege review are increasingly problematic. The proposed amendment to Rule 26(b)(5) addresses these problems by setting up a procedure to assert privilege and work-product protection claims after production. - Under the proposed rule, if a party has produced information in discovery that it claims is privileged or protected as trial-preparation material, that party may notify the receiving party of the claim, stating the basis for it. After receiving notification, the receiving party must return, sequester, or destroy the information, and may not use or disclose it to third parties until the claim is resolved. The receiving party has the option of submitting the information directly to the court to decide whether the information is privileged or protected as claimed and, if so, whether a waiver has occurred. A receiving party that has disclosed or provided the information to a nonparty before getting notice must take reasonable steps to obtain the return of the inhation. The producing party must preserve the information pending the court's ruling on whether the information is privileged or protected and whether any privilege or work product protection has been waived or forfeited by production.
The proposed amendment does not address the substantive questions whether privilege or work product protection has been waived or forfeited. Instead, the amendment sets up a procedure to allow the responding party to assert a claim of privilege or of work-product protection after production. This supplements the existing procedure in Rule 26(b)(5) for a party that has withheld information on the ground of privilege or of protection to assert the claim, the requesting party to contest the claim, and the court to resolve the dispute. It is a nod to the pressures of litigating with the amount and nature of electronically stored information available in the present age, a procedural device for addressing the increasingly costly and time-consuming efforts to reduce the number of inevitable blunders.
The published rule addressed claims of privilege, but did not specifically include claims of protection as trial-preparation material. During the comment period, many suggested adding work product protection to the rule. Doing so is consistent with present Rule 26(b)(5)(A) and reflects the reality that privilege and work- product protection often overlap; review is conducted simultaneously; and both have waiver consequences, although the extent may differ. The Committee decided to include both privilege and protection as trial-preparation material in the rule.
The published rule required the producing party to assert the claim of privilege within a "reasonable time." Several concerns were raised about the "reasonable time" provision that convinced the Committee to delete it from the proposed rule. Under the law of many jurisdictions, whether a party asserted a privilege claim within a reasonable time is important to determining whether there is a waiver; focusing on a reasonable time might carry implications inconsistent with the Committee's intent to avoid the substantive law of privilege and privilege waiver. In addition, the "reasonable time" formulation was not tied to any particular triggering event, such as the date of production or the date when the responding party learned or should have learned that it had produced information subject to a privilege or protection claim. A "reasonable time" requirement unmoored to a particular triggering event proved conhing. It is deleted from the revised proposal. The deletion does not mean that parties are free to assert a privilege or protection claim at any point in the litigation. Courts will continue to examine whether such a claim was made at a reasonable time, but as part of determining whether a waiver has occurred under the substantive law governing that issue.
The proposed rule is also revised to include what many comments recommended: a provision authorizing the receiving party to submit the information asserted to be privileged or protected under seal to the court. As a related change, the rule language is revised to require the party asserting the claim to set out the basis for it when giving notice; the Committee Note states that the receiving party should submit that statement to the court, along with the information itself, if the receiving party chooses to contest the claim. The notice informs the court of the basis for the claim and allows the receiving party to use the submission to seek a ruling as to waiver, privilege or protection, or both. Additional rule and Note language are provided to clarify this point.
As published, the Note stated that after receiving notice that information is claimed to be privileged, the party that received the information may not disseminate or use the information until the claim is resolved. Many comments urged that this directive be elevated to the rule. The Committee decided to add the directive to the rule text itself, adding clarity and emphasizing the purpose of providing a consistent and predictable procedure and preserving the status quo pending resolution of claims asserted after production.
The published rule did not specifically address an obligation by the receiving party to retrieve information it disclosed to third parties before the responding party asserted a privilege claim. Although the Committee Note stated that a receiving party should attempt to obtain return of the information if it had been disclosed to a nonparty, the absence of such language emerged as a concern during the comment period. The Committee decided to address this issue in the rule text, but to limit any such obligation to "reasonable steps" to retrieve such information. Such a formulation provides appropriate protection for the party asserting the claim pending its resolution, but also limits the burden on the receiving party.
The Committee specifically sought reaction during the comment period on whether to require the party that received the notice to certify compliance with the rule. There was little support for this addition during the comment period. One concern was that by requiring the creation of a new, separate document, such a provision would go beyond the certification that Rule 26(g) reads into the signature on a discovery document. Imposing an added requirement on a party that did not make the mistake precipitating the problem in the first place also raised concerns. The Committee decided not to include a certification requirement in the rule.
The Proposed Rule and Committee Note
The Committee recommends approval of the following proposed amendment.
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
@) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(5) Claims of Privilege or Protection of Trial Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified. a party must promptly return, sequester. or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving par@ may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified. it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Committee Note
Subdivision (b)(5). The Committee has repeatedly been advised that the risk of privilege waiver, and the work necessary to avoid it, add to the costs and delay of discovery. When the review is of electronically stored information, the risk of waiver, and the time and effort required to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed. Rule 26@)(5)(A) provides a procedure for a party that has withheld information on the basis of privilege or protection as trial-preparation material to make the claim so that the requesting party can decide whether to contest the claim and the court can resolve the dispute. Rule 26(b)(5)(B) is added to provide a procedure for a party to assert a claim of privilege or trial preparation material protection after information is produced in discovery in the action and, if the claim is contested, permit any party that received the information to present the matter to the court for resolution.
Rule 26(b)(5)(B) does not address whether the privilege or protection that is asserted after production was waived by the production.
The courts have developed principles to determine whether, and under what circumstances, waiver results from inadvertent production of privileged or protected information. Rule 26(b)(5)(B) provides a procedure for presenting and addressing these issues. Rule 26(b)(5)(B) works in tandem with Rule 26(f), which is amended to direct the parties to discuss privilege issues in preparing their discovery plan, and which, with amended Rule 16(b), allows the parties to ask the court to include in an order any agreements the parties reach regarding issues of privilege or trial-preparation material protection. Agreements reached under Rule 26(f)(4) and orders including such agreements entered under Rule 16@)(6) may be considered when a court determines whether a waiver has occurred. Such agreements and orders ordinarily control if they adopt procedures different from those in Rule 26(b)(5)(B).
A party asserting a claim of privilege or protection after production must give notice to the receiving party. That notice should be in writing unless the circumstances preclude it. Such circumstances could include the assertion of the claim during a deposition. The notice should be as specific as possible in identifying the information and stating the basis for the claim. Because the receiving party must decide whether to challenge the claim and may sequester the information and submit it to the court for a ruling on whether the claimed privilege or protection applies and whether it has been waived, the notice should be sufficiently detailed so as to enable the receiving party and the court to understand the basis for the claim and to determine whether waiver has occurred. Courts will continue to examine whether a claim of privilege or protection was made at a reasonable time when delay is part of the waiver determination under the governing law.
After receiving notice, each party that received the information must promptly return, sequester, or destroy the information and any copies it has. The option of sequestering or destroying the information is included in part because the receiving party may have incorporated the information in protected trial-preparation materials. No receiving party may use or disclose the information pending resolution of the privilege claim. The receiving party may present to the court the questions whether the information is privileged or protected as trial-preparation material, and whether the privilege or protection has been waived. If it does so, it must provide the court with the grounds for the privilege or protection specified in the producing party's notice, and serve all parties.
In presenting the question, the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility.
If a party disclosed the information to nonparties before receiving notice of a claim of privilege or protection as trial-preparation material, it must take reasonable steps to retrieve the information and to return it, sequester it until the claim is resolved, or destroy it.
Whether the information is returned or not, the producing party must preserve the information pending the court's ruling on whether the claim of privilege or of protection is properly asserted and whether it was waived. As with claims made under Rule 26(b)(5)(A), there may be no ruling if the other parties do not contest the claim.
Changes Made After Publication and Comment
The rule recommended for approval is modified from the published proposal. The rule is expanded to include trial-preparation protection claims in addition to privilege claims.
The published proposal referred to production "without intending to waive a claim of privilege." This reference to intent was deleted because many courts include intent in the factors that determine whether production waives privilege.
The published proposal required that the producing party give notice "within a reasonable time." The time requirement was deleted because it seemed to implicate the question whether production effected a waiver, a question not addressed by the rule, and also because a receiving party cannot practicably ignore a notice that it believes was unreasonably delayed. The notice procedure was further changed to require that the producing party state the basis for the claim.
Two statements in the published Note have been brought into the rule text. The first provides that the receiving party may not use or disclose the information until the claim is resolved. The second provides that if the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it.* The rule text was expanded by adding a provision that the receiving party may promptly present the information to the court under seal for a determination of the claim.
*In response to concerns about the proposal raised at the June 15- 16,2005, Standing Committee meeting, the Committee Note was revised to emphasize that the courts will continue to examine whether a privilege claim was made at a reasonable time, as part of substantive law.
The published proposal provided that the producing party must comply with Rule 26(b)(5)(A) after making the claim. This provision was deleted as unnecessary.
Changes are made in the Committee Note to reflect the changes in the rule text.
The changes from the published rule are shown below.
* * * * *
Rule 26. General Provisions Governing Discovery; Duty of Disclosure*
(5) Claims of Privilege or Protection of Trial Preparation Materials.
(A) . . &formation Withheld When a party - withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable
*Changes from the proposal published for public comment shown by double underlining new material and striking through omitted matter.
other parties to assess the applicability of the privilege or protection.
(B) P r i d q d i Information Produced. If- - preatees information is produced in discovery that is subject to a claim of privilege or of protection as trial- preparation material, claim of-, -- party making the claim it ma- notify any party that received the information of the claim and the basis for it- pndege. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve it - the . .
information until the tmmbze claim is resolved pertcfmg iv. Interrogatories and Requests for Production Involving Electronically Stored Information: Rules 33 and 34(a) and (b)
Introduction
(a). Rule 33
The proposed amendment to Rule 33 clarifies how the option to produce business records to respond to an interrogatory operates in the information age. The rule is amended to make clear that the option to produce business records or make them available for examination, audit, or inspection, includes electronically stored information. The Note language clarifies how the limitation in Rule 33(d), permitting the production of records to respond to an interrogatory when ''the burden of deriving or ascertaining the answer" is substantially the same for either party, applies to electronically stored information. The Note explains that depending on the circumstances, "the responding party may be required to provide some combination of technical support, information on application software, or other assistance" to enable the interrogating party to derive or ascertain the answer from the electronically stored information as readily as the responding party. In response to comments, the Note has been revised from the published version to clarify when such support might include direct access to a party's electronic information system. -
Because such access may raise sensitive problems of confidentiality or privacy, the Note states that the ' responding p a . may choose to derive or ascertain the answer itself.
(b). Rule 34
The proposed amendment to Rule 34(a) adds "electronically stored information" as a category subject to production, in addition to "documents." Rule 34(b) is amended to add procedures for requesting and objecting to the form for producing such information and to provide "default" forms of production.
Such requests and objections did not arise with paper discovery, because paper can generally be produced in only one form. By contrast, electronically stored information may exist in a number of different forms, some of which may be inappropriate for the litigation or costly or burdensome for the requesting or responding party.
Rule 34(a)
Adding "electronically stored information" to Rule 34(a)'s list of what is subject to production is an obvious change. In 1970, this list was revised to add "data or data compilations." This discovery rule revision was made to accommodate changes in technology; it is safe to say that the technological developments that prompted the 1970 amendment have been dwarfed by the revolution in information technology in the intervening decades, which we are grappling with today. The gap between the rule's present terminology and existing technology is exacerbated by the inclusion of "phonorecords" in the items subject to discovery and the reference to having to use-detection devices" to translate data or compilations into a usable form. Proposed revisions made since publication delete the archaic and redundant words "through detection devices," from the rule text. The term "electronically stored information" was further focused by addition of the word "stored" to Rule 34(a)(1), so that it speaks of information "stored" in any medium.
The public comments focused on whether "electronically stored information" should be included within the term "documents," or whether it should be a third category with "documents" and "things." The Committee heard that good arguments support both choices and that few negative consequences flow from either choice. The Committee decided to recommend making "electronically stored information" separate from "documents." Although courts and litigants have included such information in the word "documents" to make it discoverable under the present rule language, there are significant and growing differences that the distinction acknowledges. During the hearings, many technically sophisticated witnesses confirmed that significant types of electronically stored information - most notably dynamic databases - are extremely difficult to characterize as "documents." When the Advisory Committee decided in 1970 to include "data or data compilations" as a subset of "documents," the Committee expected that the rule would require a producing party to provide a "print-out of computer data." By contrast, while electronically stored information often can be produced in the form of a document, it also exists, and will more often be produced, in forms other than a document. Rather than continue to try to stretch the word "document" to make it fit this new category of stored information, the published proposed amendment to Rule 34 explicitly recognized electronically stored information as a separate category.
Some comments expressed concern that parties seeking production of "documents" under Rule 34 might not receive electronically stored information and would have to ask for. it specifically. Note language responds to this concern. Even if a request refers only to documents -or to electronically stored information - the responding party must produce responsive information no matter what the storage form may be. In addition, the rules provide other steps that should alert a party to request electronically stored information if it is involved in a case. The parties are directed by Rule 26(f) to discuss discovery of electronically stored information if such discovery will occur in the case, and Rule 34(b) permits the requesting party to specify the form or forms for production of electronically stored information.
One other drafting matter with respect to Rule 34(a) deser

Changes to Federal Rules 2005 - Civil In effect on December 1, 2006

Changes to Federal Rules 2005 - Civil
In effect on December 1, 2006