TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 11, 2012
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
Justice Maring has requested that the Committee discuss the status of electronic discovery in North Dakota. To provide a framework for the discussion, an article is attached exploring some new rules intended to facilitate "pain free" e-discovery. Also attached for the Committee's discussion are proposed amendments to Rule 26 that incorporate some of the innovative features other states have been using.
As the article explains, many states (including North Dakota in 2008) have adopted all or part of the federal e-discovery rules. The federal courts and the states, however, are still working to figure out how to use the rules effectively. The article indicates that the 7th Circuit Electronic Discovery Pilot Program has proved to be one of the most successful in smoothing the way for efficient electronic discovery, primarily because of the emphasis it places on "early and cooperative exchange of information."
The Pilot Program relies on the federal "meet and confer" requirement found in Fed.R.Civ.P. 26(f) to get the parties together to exchange information. North Dakota does not have a "meet and confer" requirement but instead allows voluntary discovery conferences under Rule 26(f).
North Carolina did not adopt its own adaptation of the federal e-discovery rules until 2011. Like our Rule 26, North Carolina's Rule 26 is based on the "old" federal rule. Prior to the 2011 amendment, it contained a voluntary discovery conference provision that was virtually identical to our Rule 26(f)'s.
Having the advantage of seeing how e-discovery has worked in the federal courts and other states over the past five years, and guided by the 7th Circuit principles, North Carolina revised its Rule 26(f) discovery conference provision. While discovery meetings and conferences are still voluntary under the amended rule, North Carolina created a clearly defined framework for discovery meetings, discovery plans, and discovery conferences that parties can use parties when they decide that they should "meet and confer." It also requires consideration of e-discovery issues when parties choose to enter into discovery meetings. The North Carolina rules are attached, as are proposed amendments to our Rule 26(f) based on the North Carolina framework.
North Carolina also included a provision defining "electronically stored information" and a definition of discoverable metadata in its amendments to Rule 26. As the article points out, deciding how much metadata should be discoverable is a major e-discovery issue. The proposed amendments to our Rule 26 include this definition material.