Friday, September 27, 2013

New Electronic Discovery Rules in Massachusetts

The Mass. Rules of Civil Procedure have been amended effective January 1, 2014 to incorporate new provisions for handling electronic discovery. The Reporter's Notes to Rule 26 provide an extensive history of the changes:

"The 2014 amendments to Rule 26 were part of a series of amendments concerning discovery of electronically stored information. Amendments have been made to Rules 16, 26, 34, 37, and 45.

"For a number of years, the Standing Advisory Committee on the Rules of Civil Procedure of the Supreme Judicial Court (Standing Advisory Committee) had been considering the amendments to Federal Rules of Civil Procedure that dealt with discovery of electronically stored information in litigation.

"The driving force behind the decision to consider rules for electronic discovery in Massachusetts is the staggering growth of information in electronic form today. In preparing draft electronic discovery rules, a subcommittee of the Standing Advisory Committee drew on two primary sources: the 2006 amendments to the Federal Rules of Civil Procedure that addressed electronically stored information and the 2007 Uniform Rules Relating to the Discovery of Electronically Stored Information (National Conference of Commissioners on Uniform State Laws). Helpful comments on the background that fueled the decision to amend the Federal Rules and to adopt Uniform Rules can be found in the Advisory Committee Notes to the 2006 Federal Rules amendments and the Comments to the Uniform Rules.

"The following excerpts from the Prefatory Note that accompanied the Uniform Rules illustrate the scope of the problems created by electronically stored information and the litigation process. Footnotes from the following excerpts have been deleted.
"With very few exceptions, when the state rules and statutes concerning discovery in civil cases were promulgated and adopted, information was contained in documents in paper form. Those documents were kept in file folders, filing cabinets, and in boxes placed in warehouses. When a person, business or governmental entity decided that a document was no longer needed and could be destroyed, the document was burned or shredded and that was the end of the matter. There was rarely an argument about sifting through the ashes or shredded material to reconstruct a memo that had been sent. 
"In today's business and governmental world, paper is a thing long past. By some estimates, 93 percent or more of corporate information is being stored in some sort of digital or electronic format. This difference in storage medium for information creates enormous problems for a discovery process created when there was only paper. Principal among these differences is the sheer volume of information in electronic form, the virtually unlimited places where the information may appear, and the dynamic nature of the information. These differences are well documented in the report of the Advisory Committee on the Federal Rules of Civil Procedure (Civil Rules Advisory Committee). The Civil Rules Advisory Committee recommended adoption of new Federal Rules to accommodate the differences:
The Manual for Complex Litigation (4th) illustrates the problems that can arise with electronically stored information. 
The sheer volume of such data, when compared with conventional paper documentation, can be staggering. A floppy disk, with 1.44 megabytes is the equivalent of 720 typewritten pages of plain text. A CD-ROM with 650 megabytes, can hold up to 325,000 typewritten pages. One gigabyte is the equivalent of 500,000 typewritten pages. Large corporate computer networks create backup data measured in terabytes, or 1,000,000 megabytes; each terabyte represents the equivalent of 500 billion typewritten pages of plain text. 
Electronically stored information may exist in dynamic databases that do not correspond to hard copy materials. Electronic information, unlike words on paper, is dynamic. The ordinary operation of computers - including the simple act of turning a computer on and off or accessing a particular file - can alter or destroy electronically stored information, and computer systems automatically discard or overwrite as part of their routine operation. Computers often automatically create information without the operator's direction or awareness, a feature with no direct counterpart in hard copy materials. Electronically stored information may be "deleted" yet continue to exist, but in forms difficult to locate, retrieve or search. Electronic data, unlike paper, may be incomprehensible when separated from the system that created it. The distinctive features of electronic discovery often increase the expense and burden of discovery."
"After making a preliminary decision to move forward with a recommendation to adopt rules on electronic discovery, the Standing Advisory Committee also decided that it would be preferable to integrate any changes dealing with electronic discovery directly into the relevant existing rules of the Massachusetts Rules of Civil Procedure and rejected the alternative of promulgating a separate set of rules that would govern electronic discovery.

"The Committee also discussed whether electronic discovery rules should be applicable to all Trial Court Departments or should be limited to those courts that regularly heard "larger" civil cases where the costs, time associated with, and burdens of, electronic discovery were perceived to be significant. The Committee ultimately decided that electronic discovery was a matter of concern in all courts of the Commonwealth, and concluded that the electronic discovery rules should be applicable to all trial courts in Massachusetts, and not be limited to courts such as the Superior Court.

The Standing Advisory Committee believes that the proposed amendments to the Massachusetts Rules of Civil Procedure reflect the goals that were identified in the Prefatory Note to the Uniform Rules describing the 2006 amendments to the Federal Rules of Civil Procedure: "to (1) provide early attention to electronic discovery issues, (2) provide better management of discovery into electronically stored information, (3) set out a procedure for assertions of privilege after production, (4) clarify the application of the rules relating to interrogatories and requests for production of documents to electronically stored information, and (5) clarify the application of the sanctions rules to electronically stored information."

"There is a danger in attempting to describe "key" or "major" provisions of rules changes, since any significant change in a rule has the potential to change the dynamic of litigation. But it is fair to say that a major focus of the Committee charged with recommending the 2014 amendments was crafting a process: (1) by which the parties, and the court if necessary, deal with electronic discovery early in the litigation, including the format for production of electronically stored information; (2) that addresses how to handle electronically stored information that is "inaccessible;" (3) that recognizes that privileged information may be inadvertently disclosed in the context of electronic discovery and sets forth a remedy for such disclosure; and (4) that provides protection where electronically stored information is lost by virtue of the "good-faith operation of an electronic information system." These matters are all addressed in the Reporter's Notes that accompany the 2014 amendments.

"The rules governing electronic discovery apply in all courts and in all proceedings governed by the Massachusetts Rules of Civil Procedure. However, a particular department of the Trial Court may consider whether supplemental rules or standing orders that address special needs of the department, including considerations common to self-represented litigants, would be appropriate. Of course, any departmental rule or standing order regarding electronic discovery may not be "inconsistent with" the provisions of the Massachusetts Rules of Civil Procedure. Mass. R. Civ. P. 83. See Sullivan v. Iantosca, 409 Mass. 796 (1991)."