Introduction

Discovery of electronic information involves issues that are analogous but not always identical to those involved with hard copy documents. For example, multiple copies may reside on systems not intended for recordkeeping and not readily accessible in the ordinary course of business. In addition, there is an entirely new class of "embedded" information relating to such electronic material that was never available with regard to hard copies and may not be within the scope of discovery contemplated by state or federal rules.¹

Some commentators blithely contend that all forms of electronic information routinely must be produced regardless of the cost, burden or inconvenience to the continuing operations of the producing party. One oft-cited justification is that such obligations were entirely predictable to computer users, as if they had a choice not to participate in the electronic world. See Linen v. A.H. Robins Co., Inc., 1999 Mass. Super. LEXIS 240, *31 (Mass Super. Ct. June 16, 1999) ("one of the risks taken on by companies which have made the decision to avail themselves of the computer technology"). But see McPeek v. John D. Ashcroft, et al., 2001 U.S. Dist. LEXIS 12061, *8 (D.D.C. August 1, 2001) ("What alternative is there? Quill pens?"). Adding to the problem is the widespread misconception among some courts that production of electronic records is easy to accomplish (the "press the button" syndrome).

Need for Rules

Inconsistencies in current practice sometimes unfairly place at risk parties that proceed in good faith with production while maintaining normal business practices. See, e.g., Applied Telematics, Inc. v. Sprint, 1996 U.S. Dist. LEXIS 14053, *11 (E.D. Pa. Sept. 18, 1996) (defendant "at fault for not taking steps to prevent the routine deletion of backup files"); See also Linnen, supra at *31 ("failure to preserve documents requested by a party is inexcusable conduct"). This is particularly problematic where e-mail is sought from "back-up" tapes created solely for disaster recovery purposes. Only rarely can it be demonstrated that the unavailability of alternative electronic records is such that an order for the reconstruction of backup tapes should issue. See McPeek v. John D. Ashcroft, et al., supra.

Subtle constraints inherent in traditional discovery practice by mutual consent are lacking in the electronic world. Whereas the burden of demanding that a producing party search garbage cans to reconstruct trashed document drafts is obvious, no such restraint inhibits a requesting party without reciprocal obligations in the new electronic environment. While many such issues ultimately can be resolved after taking the time of the courts and often with an expenditure of funds disproportionate to the dispute at hand, a better approach would be the adoption of rules that address the underlying problems in a manner that informs the parties and guides the Courts toward a balanced approach to electronic discovery. Since the Federal Rules Advisory Panel has indicated that it is not yet prepared to act in this arena, there is ample opportunity for the states to take the lead.²

Key Normative Standard

Any electronic discovery rule should embody the fundamental principle that the duty of production extends in the first instance only to those records that can be secured in the ordinary course of business, as is the practice in hard copy discovery. The rule could explicitly allow production of information not available in the ordinary course in those circumstances where the requesting party can demonstrate a substantial need for the additional information. This approach is consistent with ABA Civil Discovery Standard 29(a)(iii), which provides for the restoration of electronic material deleted in the regular course of business only upon a showing of substantial need. However, if discovery is ordered beyond that which is available in the ordinary course, the requesting party should ordinarily pay for that additional effort. Thus, the rule should also provide that:

"If the court orders production of such data or information in the requested or other form, the court should also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information."

Document Destruction Issues

Users of electronic records routinely delete information from their computer systems to make room for new information and to reflect the evolution of documents, much as drafts historically have been discarded in traditional practice. The extreme view of some commentators has been that producing parties have "no excuse" not to retain everything - including deleted e-mail and backup tapes. This philosophy impedes implementation of reasonable retention policies, see Lewy v. Remington, 836 F.2d 1104 (8th Cir. 1988), such as those that place primary responsibilities upon users to designate electronic information for retention purposes and to not delete relevant electronic materials upon notification of the institution of litigation.

It would be useful to have explicit recognition in the rules of civil procedure that producing parties are not routinely required to suspend the operation of reasonable document retention or disaster recovery programs without proof of substantial need. This could be coupled with admonitions against ex parte preservation orders and standards for entering court sanctions where necessary. For example, such a rule could provide that:

"Nothing in these rules shall require the responding party to suspend or alter the operation in good faith of disaster recovery or document retention systems absent a preservation order issued upon good cause shown, which shall not issue unless the standards applicable to obtaining injunctive relief are met. No sanctions or other relief predicated upon a failure to maintain or preserve documents or data shall be entered in the absence of a discovery request or preservation order that describes with particularity the specific documents or data requested and evidence that the party upon whom the request or order was served willfully failed to preserve such documents or data. Evidence that reasonable steps were undertaken to notify relevant custodians of preservation obligations shall be prima facie evidence of compliance with obligations under such discovery requests or preservation orders.

Footnotes

1. For instance, a member of the Federal Civil Rules Advisory Committee has noted that "embedded" information may not be covered by Federal Rule of Civil Procedure 34 as it currently exists. See Scheindlin and Rabkin, "Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?," 41 Boston College Law Review 1 (2000) (advocating amendments to Rule 34 to rectify issues identified).

2. Judge Brandeis's often quoted statement that "one of the happy incidents of the federal system that a courageous State may, if its citizens choose, serve as a laboratory" is particularly applicable here. New State Ice Co. v. Liebmann, 285 U.S. 262, 311(1932) (dissenting opinion). Texas has addressed the unique nature of electronic discovery issues through a rule of civil procedure. In 1998, Texas enacted Tex. R. Civ. P. 196.4 (Electronic or Magnetic Data). While I am indebted to the Texas rule for informing my thoughts on this issue, the rule proposed herein is not identical to the Texas rule.

(a) General. To obtain discovery of data or information that exists in electronic, digital or magnetic form, a requesting party must specifically request production of such data or information and specify the form in which it should be produced. The responding party must produce the data or information that is responsive to the request and is reasonably available to the responding party in the ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules.

(b) Cost-Shifting For Extraordinary Steps. A court may order, upon showing of substantial need, production of data or information that is otherwise subject to production but is not reasonably available in the ordinary course of business. If the court orders production of such data or information in the requested or other form, the court should also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.