The proposed amendments focus on the discovery and production of “electronically stored information” (the term adopted by the Advisory Committee in the proposed amendments). While today’s networks store vast amounts of electronic data, many systems also automatically and systematically delete data for a variety of reasons (e.g. prohibitive costs of retention, obsolescence or “spam”). The proposed amendments attempt to balance a requesting party’s need for full production and discovery of electronic data relevant to the claims and defenses of a suit with the producing party’s need for efficient and cost-effective management of its ever increasing pile of electronically stored information.
a. The Meet and Confer Proposals
The proposed amendments require the parties to pay early attention to electronic discovery issues. The initial disclosures under Rule 26(a) now require a copy or description of all electronically stored information that a party may use to support its claims or defenses. Rule 26(f) would require the parties, as part of their initial conference, to discuss “any issues relating to the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced” and “any issues relating to claims of privilege or protection as trial- preparation material, including - if the parties agree on a procedure to assert such claims after production - whether to ask the court to include their agreement in an order.” Rule 16(b) would allow the court’s initial scheduling order to reflect any of the agreements reached between counsel at the Rule 26(f) conference. In connection with the above “meet and confer” proposals, Form 35’s template for the parties’ proposed discovery plan is amended to provide for the parties’ proposals as to the discovery and handling of electronically stored information. Form 35 further allows the parties to specify any agreed upon privilege protection order.
The sum of the “meet and confer” proposals is that the parties should discuss electronic discovery in general, the form of production, issues related to the preservation of electronic data, and whether privilege is waived with production.
In the best case, these proposals may result in some cost savings. For example, requiring the parties to discuss the form of production should result in an agreement to provide data in a common media for easier review and extraction and in searchable form for quicker, more cost- effective review. This development has the potential to reduce litigation costs currently spent sparring over differing collection, review and production methodologies and technologies, including accusations that one form or the other fails to satisfy duties to preserve and produce. However, for large enterprises the task of describing their electronic information may result in
substantial and unnecessary upfront costs, making settlement more difficult.
The privilege waiver components hold less potential for cost savings
.3 The hope, of
course, is that directing the parties to agree to protocols that minimize risk of privilege waiver could also expedite discovery and minimize costs by allowing the parties to produce data earlier without resorting to time-consuming and expensive attorney review for privileged documents. The Rules Committee noted that the parties could agree to a “quick peek” agreement, in which the producing party would provide certain documents for initial examination without waiving any privilege. The requesting party would then take the “quick peek” and designate the documents that it actually wanted to be produced. The producing party would then do a full review of the requested subset, withhold documents actually privileged and produce the non- privileged relevant documents. Another cost-effective possibility is the “clawback agreement,”