New rules on the discovery of electronic information in North Dakota civil cases take effect March 1, 2008.
The new electronic discovery provisions are in North Dakota Rules of Civil Procedure 16, 26, 33, 34, 37 and 45. They are based on federal rule amendments on electronic discovery that were implemented Dec. 1, 2006.
Rule 26 is the general rule on discovery. The electronic discovery amendments to Rule 26 are found in subdivision (b), which governs discovery scope and limits.
New subparagraph (b)(2)(B) begins: "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." The party resisting discovery, however, is responsible for showing that the requested information is not reasonably accessible. The court has discretion to require discovery of information that is not reasonably accessible if the party seeking the information shows good cause.
New paragraph (b)(6) deals with claims of privilege and protection. Subparagraph (b)(6)(A) requires a party who contends that requested information is privileged or protected to provide enough details about the information to allow "other parties to assess the applicability of the privilege or protection."
Subparagraph (b)(6)(B) allows a party who has provided information that turns out to be protected or privileged to "notify any party that received the information of the claim and the basis for it."
The receiving must then "promptly return, sequester, or destroy the specified information." If the party who received the information does not agree that it should be protected, the party may present it to the court under seal for a ruling on the privilege claim.
This provision provides broad protection to parties who disclose privileged or protected information. A party who makes a large-scale disclosure of electronic information, for example, may inadvertently turn over privileged information because the volume of information made a thorough prior review difficult. The provision, however, would also protect a party who disclosed a single piece of paper by mistake - it is not restricted to electronic information alone.
The Joint Procedure Committee discussed whether the language of Rule 26 (b)(6)(B) was at odds with North Dakota Rule of Evidence 510, which provides that if material is voluntarily disclosed, any claim of privilege is waived. Because Rule 510 seemed to conflict with the new rule, the Committee proposed an amendment, which the Supreme Court approved, to specify that Rule 510 does not apply in situations where Rule 26(b)(6)(B) applies. This amendment to Rule 510, like the discovery rule amendments, will take effect on March 1, 2008.
Going beyond Rule 26, the other discovery rules were reviewed and amended to address discovery of electronic information.
Rule 33 on interrogatories was amended to reference electronically stored information in subdivision (d), clarifying that electronically stored information is a type of business record.
Rule 34 on document production and entry upon land was amended to include references to testing and sampling electronically stored information. Rule 34(b) was amended to include language allowing a requestor to specify the form in which electronically stored information is to be produced. Objections to requests for production of information in a specific form are allowed under the amended rule, and instructions on how electronically stored information should be produced if the form is not specified are provided.
Rule 37 on discovery sanctions was amended to add a revised subdivision (f), which limits sanctions that can be imposed on a party for failing to provide electronically stored information lost due to "the routine, good-faith operation of an electronic information system." In other words, if a party has a long-standing practice of deleting all e-mail every Friday, that party might have a defense against being sanctioned for failing to produce requested e-mail.
Rule 45 on subpoenas was amended to address copying, testing and sampling electronically stored information. Rule 45 (a)(1)(B) was amended to include language allowing the requestor to specify the form in which electronically stored information is to be produced, while Rule 45(d)(1) was amended to include instructions on how electronically stored information should be produced if the form is not specified. Rule 45(d)(2)(B) was amended to include instructions on how to assert claims of protection or privilege when protected material is turned over.
Echoing language added to Rule 26, Rule 45(d)(1)(D) states that a person responding to a subpoena "need not provide discovery of electronically stored information" if that information is "not reasonably accessible because of undue burden or cost." If a requesting party shows good cause, the court can order discovery of such information, but the court may also "specify conditions" for this discovery.
The Court did not adopt all of the federal electronic discovery amendments. Amendments to Federal Rules of Civil Procedure 16 and 26 require parties to "meet and confer" at an early stage in an action about discovery and disclosure of electronic information. Corresponding amendments were not made to the North Dakota rules because North Dakota does not require discovery conferences and initial disclosures. North Dakota Rule of Civil Procedure 16, however, was amended to include discussion of electronic discovery among the topics addressed at scheduling and pretrial conferences.
At the same time the Joint Procedure Committee was working on the electronic discovery amendments, the National Conference of Commissioners on Uniform State Laws was also putting together a set of uniform rules on electronic discovery. North Dakota attorney Lawrence Klemin was on the NCCUSL committee that developed these uniform rules.
The NCCUSL electronic discovery rules are somewhat similar to the federal electronic discovery provisions. The uniform rules are unique, however, because they are stand-alone electronic discovery rules, rather than provisions integrated into the general rules of discovery. The Joint Procedure Committee reviewed and discussed the NCCUSL rules, but decided to recommend following the federal model rather than adopting a separate set of electronic discovery rules.
February 18, 2008