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State
and Local U.S. District Court Rules
test
U.S. District Courts
Ninth Circuit
A release from
the Ninth Circuit Office of Circuit Executive Public Information Office has
reported that on May 25, 2004, the Ninth Circuit Judicial Council agreed to
circulate for preliminary review proposed model rules on electronic
discovery for U.S. District Courts within the Ninth Circuit, which includes
nine western states and two Pacific Island territories. The proposed rules
will be circulated to the Ninth Circuit's Conference of Chief District
Judges and to the Committee on Rules of Practice and Procedure of the U.S.
Judicial Conference.
According to the release, Chief District Judge David Levi of the Eastern
District of California believes the proposed Ninth Circuit rules are "on the
same page" as rules proposals recently forwarded to the Standing Committee
on Rules of Practice and Procedure of the Judicial Conference by the
Advisory Committee on Federal Rules of Civil Procedure. Judge Levi chairs
the Standing Committee and is on the Ninth Circuit Judicial Council.
The proposed local rules governing discovery of electronic data and
documents for U.S. District Courts within the Ninth Circuit include:
-
A four-part Rule 1 that covers parties' duty
to investigate, duty to notify, duty to meet and confer, and efforts to
agree on the scope of electronic data to preserve;
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A second rule that would limit "the obligation
to search for electronic data and documents … to a search of active data
that admits of efficient searching and retrieval";
-
A third rule would provide for production of
electronic data in electronic form with metadata unless otherwise agreed
or ordered;
-
A fourth rule would allow a responding party
to conduct an electronic search of its documents; and
-
A fifth rule would provide that in normal
circumstances, the responding party would bear the costs of production
while the requesting party would bear the costs of obtaining data from
"non-active" sources.
Arkansas
Eastern and Western
Districts of Arkansas Local Rule 26.1
This rule
requires that parties file with the court a Rule 26(f) report that includes
specific information related to electronic discovery. If they anticipate any
discovery beyond data reasonably available in the ordinary course of
business, they are to determine the scope of such discovery and costs and
time required for production. The parties are to agree to the format, media,
and procedures for production. Each must disclose whether "reasonable
measures" have been taken to preserve potentially discoverable evidence.
Finally, parties must explain any problems they anticipate with electronic
discovery.
California
California
Code of Civil Procedure Section 2017
The California
Code specifically provides that discovery may be conducted in electronic
media and by electronic communication, and authorizes courts to enter orders
regarding use of technology in discovery. In particular, a court may order
that discovery may be had only upon a finding or stipulation that proposed
procedures meet certain criteria. Approved procedures must be cost-effective
and not unduly expensive or time-consuming. They must not require that
parties or counsel purchase unnecessary or exceptional services, hardware,
or software. The rule also grants courts oversight of vendor relationships
in the e-discovery process.
Delaware
A default
standard for electronic discovery has been made available for use by the
court and litigants in the U.S. District Court for the District of Delaware.
While agreement of the parties on "e-discovery" is expected by the time of
the Fed. R. Civ. P. 16 scheduling conference, the default standard shall
apply if no agreement is reached.
The standard requires the exchange of information prior to the Rule 26(f)
conference, including identification of custodians, electronic systems, and
an "e-discovery liaison," and notice of any anticipated problems in the
electronic discovery. The standard also provides for a sequenced electronic
discovery process which postpones searches of documents with limited
accessibility until after a search of other responsive electronic documents.
On-site inspections are not permitted unless there are exceptional
circumstances and good cause and specific need have been demonstrated.
A search methodology, including words, terms, and phrases to be searched,
must be agreed upon by the parties. If parties do not agree otherwise,
electronic files are to be produced as image (PDF or TIFF) files without
removal of original formatting, metadata, or revision history. Directions
for retention coordinators are included to avoid spoliation claims, and
parties are directed to return inadvertently produced privileged documents.
Costs are expected to be borne by each party although the court will
apportion costs upon a showing of good cause.
Florida
Middle District of
Florida Local Rule 3.03(f)
This
jurisdiction requires that attorneys use technology to the maximum extent
possible in all phases of litigation. The rule offers the example of serving
interrogatories on computer disk.
Illinois
Illinois
Supreme Court Rules 201(b)(1) & 214
The Illinois
Supreme Court Defines "document" to include all retrievable information in
computer storage, and provides mechanism for requesting production of
information from computer storage.
Kansas
The U.S.
District Court for the District of Kansas has issued Electronic Discovery
Guidelines for counsel in connection with the Fed.R.Civ.P. 26(f) conference.
The Guidelines state that "[d]isclosures pursuant to Fed.R.Civ.P. 26(a)(1)
must include electronic information" and counsel are advised to become
knowledgeable about their clients' information management systems. Counsel
who seek discovery of computer-based information must notify opposing
counsel immediately. The Guidelines set forth issues on which counsel should
seek agreement at the Rule 26(f) conference, including preservation of
information, e-mail discovery and an e-mail search protocol, handling of
deleted, backup and archival information, allocation of costs, format and
media for production, and handling of inadvertently disclosed privileged
material.
Mississippi
Supreme Court of
Mississippi Rule 26
Mississippi
Supreme Court Rule 26 was amended to specifically allow for the discovery of
electronic or magnetic data. Rule 26(b)(5) now states: “Electronic Data. To
obtain discovery of data or information that exists in electronic or
magnetic form, the requesting party must specifically request production of
electronic or magnetic data and specify the form in which the requesting
party wants it produced. The responding party must produce the electronic or
magnetic data that is responsive to the request and is reasonably available
to the responding party in its ordinary course of business. If the
responding party cannot—through reasonable efforts—retrieve the data or
information requested or produce it in the form requested, the responding
party must state an objection complying with these rules. If the court
orders the responding party to comply with the request, the court may also
order that the requesting party pay the reasonable expenses of any
extraordinary steps required to retrieve and produce the information.”
New Jersey
District of New
Jersey Local Rule 26.1(d)
This rule sets
forth specific procedures for the discovery of digital and computer-based
information. Counsel has a duty to investigate a client's information
management and other digital storage systems prior to a Rule 26(f)
conference in order to understand how information is stored and how it can
be retrieved. This duty extends to historical and backup information.
Counsel must also identify a person or persons with knowledge about the
client's information management systems with the ability to facilitate
reasonably anticipated discovery. The rule further sets out a duty to notify
an opposing party as soon as possible, but no later than the Rule 26(f)
conference, of the categories of information which may be sought. During the
Rule 26(f) conference, the parties must also confer and attempt to agree on
electronic discovery issues, including: preservation and production of
digital information; procedures for dealing with inadvertent disclosure of
digital information; whether restoration of deleted digital information may
be necessary; whether backup or other historical or legacy data is within
the scope of discovery; the media, format and procedures for producing
digital information; and who will bear the cost of preservation, production
and restoration (if necessary) of any digital discovery.
Texas
Texas
Rule of Civil Procedure 196.4 (Electronic or Magnetic Data)
Only responsive
information that is "reasonably available to the responding party in the
ordinary course of business" must be produced. The responding party has an
opportunity to object to any request calling for information that cannot be
produced by "reasonable efforts." If the court then orders production, it
must order that the requesting party pay costs of "extraordinary steps"
required for production.
Wyoming
District of Wyoming
Local Civil Rule 26.1(d)
The District of
Wyoming's local rule requires counsel, in preparation for a Rule 26(f)
conference, to carefully investigate their clients' information systems. In
particular, attorneys must know how information is stored and how it can be
retrieved, and must review contents of client files, including legacy data.
The rule also sets forth specific agenda items for a Rule 26(f) conference,
including steps parties will take to preserve computer-based evidence, scope
of email discovery and agreed email search protocols, whether restoration of
deleted or backup data is expected, and the cost of any such restoration.
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