TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 17, 2013
RE: Rule 45, N.D.R.Civ.P., Subpoena
The Supreme Court has approved amendments to Rule 45 that will take effect March 1, 2013. The Court also approved amendments to N.D.R.Civ.P. 26 on discovery that will take effect at the same time. During the discussion of the amendments to Rule 45, a member of the Court asked why there was no metadata language in Rule 45 similar to the new language approved for Rule 26. The Court requested that the committee discuss this issue.
The metadata language in Rule 26 was based on amendments to North Carolina's Rule 26. As discussed in the attached article, "Metadata, E-Discovery, and E-Public Records in North Carolina," including metadata in the definition of "electronically stored information" is a step forward because this establishes that at least some metadata is discoverable. On the other hand, the definition of metadata in Rule 26 is fairly restrictive and this places limits on the discovery of metadata.
Because Rule 45 is not part of the "Depositions and Discovery" chapter of the Rules of Civil Procedure, the Rule 26 metadata definition does not directly apply to gathering of evidence under Rule 45. North Carolina did not include the metadata language in their Rule 45 amendments, copy attached.
In discussing the amendments to Rules 26 and 45, the Court concluded that there could be some rationale that would support having limits on the collection of metadata in the formal discovery process while not imposing similar limits on metadata gathering through a subpoena. At the same time, it seems likely that parties seeking to limit production of metadata evidence in response to a subpoena would use the definition in Rule 26 to support arguments against expansive metadata gathering.
For the sake of discussion, proposed amendments to Rule 45 that integrate language from Rule 26 on metadata are attached.