TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery; Rule 510, N.D.R.Ev., Waiver of Privilege by Voluntary Disclosure
In September, the Committee approved changes to Rule 26 based on the federal "electronic discovery" amendments. During the discussion of the amendments, several members pointed out that the rule's new paragraph (b)(6) "safe harbor" provision might not be consistent with North Dakota's rules on privilege.
Rule 26(b)(6)(B) protects privilege claims under some circumstances when information is voluntarily produced in the course of discovery. One purpose of the provision is to protect privileged material inadvertently disclosed during large-scale production of electronic data. Under Rule 510, however, if material is voluntarily disclosed, any claim of privilege is waived.
Rule 510 is not based on a federal rule but on a uniform rule of evidence. The North Dakota Supreme Court has indicated that N.D.R.Ev. 511 needs to be applied when evaluating an alleged waiver of privilege through voluntary disclosure. Rule 511 states that "[a] claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege."
In Farm Credit Bank v. Huether, 454 N.W.2d 710 (N.D. 1990), the North Dakota Supreme Court held that privilege was not waived when a party's lawyer inadvertently turned over a file containing privileged material. The court reasoned that, because the party itself had not had the opportunity to claim the privilege, the privilege did not disappear when the party's lawyer disclosed the material.
It is possible that Rule 26(b)(6)(B) is consistent with Rules 510 and 511 because when bulk electronic data is produced, such production is arguably "made without opportunity to claim the privilege." For the sake of clarity, however, staff has prepared a proposed amendment to Rule 510 that specifies that Rule 510 does not apply when Rule 26(b)(6)(B) applies. The proposed amendment is attached along with a version of Rule 26 that includes a cross-reference to Rule 510.
A member also suggested in September that Rule 26(b)(6)(B) may not be consistent with the new Rule 4.5 of the Rules of Professional Conduct. Rule 4.5(a), however, provides that "[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know the document was inadvertently sent shall promptly notify the sender." This rule seems to compliment Rule 26(b)(6)(B). A copy of Rule 4.5 is attached for the Committee's reference.
In September, Judge Hagerty informed the Committee that the National Conference of Commissioners on Uniform State Laws were considering uniform rules on electronic discovery. The latest draft of these rules is attached. As is explained in the prefatory note to the draft, NCCUSL decided not to "reinvent the wheel" in developing electronic discovery rules: they based the uniform rules on the federal electronic discovery provisions. The uniform rules are interesting, however, because they stand alone as a "discrete set of rules applicable to the discovery of electronically-stored information" rather than being integrated into the general rules of discovery.
As was noted in September, staff did not present all of the federal electronic discovery amendments to the committee because some amendments dealt with discovery conferences and initial disclosure, which are not required under North Dakota's rules. The attached articles ("IT's Day in Court" and "Hitting the High Points of the New EDD Rules") point out that the federal amendments related to discovery conferences and pretrial disclosures are quite significant because they force the parties to be proactive about identifying and protecting electronically stored information that may be subject to discovery.
The Committee may wish to discuss whether, in the specific area of electronic discovery, initial disclosures and discovery conferences may be useful. Rules 4 and 5 of the draft Uniform Rules deal with conferences on electronically stored information and with pre-trial court orders on the discovery of such information and could be the basis of a stand-alone rule on electronic discovery conferences. In the alternative, the Committee may wish to discuss whether to revisit the issue of having initial disclosures and discovery conferences in all civil cases.