CREAGERLAW FIRM, PLLC

July 25, 2008

B~ E-M.ailHon. Diane M. StricklandBoyd-Graves Conference Chair1111 E Main StreetSuite 1700Richmond, VA 232 ! 9

_Report of Boyd-Graves Conference Subcommittee on E-Discovery

Dear Diane:

The proposed rule changes regarding e-discovery have continued to move forward throughthe rule change process.

A summary of the previous history of these proposed rule changes should be helpful. In2007, acting in response to a direction by the Chief Justice of the Supreme Court of Virginia that thetopic of e-discovery be studied, the Virginia Supreme Court Judicial Council’s Advisory Committeeon Rules (the "Advisory Committee") prepared an initial and unapproved "discussion draft" ofpossible rule amendments regarding discovery of electronically stored information ("e-discovery").Detailed comments were provided and considered by the Advisory Committee. On October 1,2007, the Advisory Committee issued a report which stated that the Advisory Committee hadconsidered the comments and unanimously decided to publish a Tentative Draft of the proposedrule changes. The Tentative Draft was published with comments sought by March 15, 2008. Acopy of the October 1, 2007 report and the Tentative Draft is attached as Exhibit A. It will be notedthat the Tentative Draft divided Rule 4:9 into Rule 4:9 [addressing discovery from parties) and Rule4:9A [addressing discovery from non-parties]. You will recall that this was a change that somemembers of the Subcommittee and the Conference felt might be useful.

The Advisory Committee met again in April of 2008 and considered the comments that hadbeen received regarding the Tentative Draft. The Advisory Committee resolved to recommend tothe Virginia Supreme Court Judicial Council that the proposed rule changes in the Tentative Draftshould be adopted, with these changes:

In Rule 4:l(b)(6)(ii) -- took out the dashed "inadvertent" reference so anyclaim that privilege still applies can be resolved under the procedures of thatrule.

The Tentative Draft language as revised by the AdvisoryCommittee thus reads [the language deleted by the AdvisoryCommittee is stricken out]:

(ii) If a party believes that a document or electronically storedinformation that has already been produced is privileged or its

Letter to Hon. Diane M. StricklandJuly 25, 2008Page 2 of 4

confidentiality is otherwise protected ~"t +~’~ --"~’:’~ ~’°~ ~""a :.na..-.~.~,l.. the produc~g pa~ may noti~ the other ~

of such claim and the b~is for the claim~ privilege or protection.U~n r~eiving such notice, ~y p~ holding a copy of the desi~atedmaterial shall sequemer or desWoy its copies thereof, and shall notduplicm or dis~minate such material pending dis~sition of the claimof privilege or protection by a~ement or u~n motion by any p~. Ifa receivMg p~ h~ disclosed the Mfo~ion before being notified of¯ e claim of privilege or o~er prot~tion, ~ p~ must ~ere~on~le steps to re.eve the desi~ated material. ~e producingpa~ must pre~e the info~ation until the claim of privilege or otherprotection is resolved.

In Rule 4:9(b)(iii) -- added subheads A and B such that the first paragraph isdirected to "documents" and the rest of that subsection relates to electronicdiscovery. The repetitive iteration of the 10 lines about a party deemingmaterial not reasonably accessible has been replaced with a one-line crossreference to the place in 4:1 where that same language appears.

In that same subparagraph [Rule 4:9(b)(iii)(C)], a few words are added to the"form" provision, so it reads: "(2) If a request does not specify the form orforms for producing electronically stored information, _or if a responding partyobjects to the requested form or forms of production,_ a responding party mustproduce the information as it is ordinarily maintained if it is reasonably usablein such form or forms, or must produce the information in another form orforms in which it is reasonably usable. A party need not produce the sameelectronically stored information in more than one form."

The Tentative Draft language as revised by the AdvisoryCommittee thus reads [the language added by the Advisory Committeeis shown in bold:

(c) If a request does not specify the form or forms for producingelectronically stored information, or if a responding party objects tothe requested form or forms of production, a responding party mustproduce the information as it is ordinarily maintained if it is reasonablyusable in such form or forms, or must produce the information inanother form or forms in which it is reasonably usable. A party neednot produce the same electronically stored information in more thanone form.

In Rule 4:9A(c) the same headings are added as in the parallel spot in 4:9(b) sothat the first paragraph relates to paper documents and the rest to electronicproduction.

Rule 4:13, language is added to (5) so it reads: (5) Avoiding unnecessaryproof by exploring the possibility of obtaining admissions of fact and of

Letter to Hon. Diane M. StricklandJuly 25, 2008Page 3 of 4

documents and regarding documents and information obtained throughelectronic discovery [adding language shown in bold].

Finally, adding "meet and confer" requirement tracking existing protectiveorder provisions, such that a motion must be accompanied by such acertificate: "Upon motion by a party or by the person from whom discovery issought, accompanied by a certification that the movant has in good faithconferred or attempted to confer with other affected parties in an effort toresolve the dispute without court action, and for good cause shown, the court..¯ may make any order which justice requires to protect a party."

The Judicial Council met in mid-June of 2008, and approved the Tenative Draft (as revisedabove by the Advisory Committee) except the Judicial Council deleted the proposed so-called "safeharbor" provision of Rule 4:12(e) relating to sanctions. The proposed safe harbor provisionregarding e-discovery as originally contained in the Tentative Draft had provided:

(e) Electronically Stored Information. Absent exceptionalcircumstances, a court may not impose sanctions under these rules on a partyfor failing to provide electronically stored information lost a result of theroutine, good faith operation of an electronic information system.

That provision was deleted by the Judicial Council. My understanding from speaking withProfessor Kent Sinclair is that the Judicial Council felt that trial court’s already could exercisediscretion with respect to imposing sanctions and this special provision was not needed.

The Judicial Council forwarded its recommendation for adoption of the Tentative Draft asrevised by the Advisory Committee (with Rule 4:12(e) deleted) to the Virginia Supreme Court inmid-June of 2008. At the time this report was prepared, the Virginia Supreme Court was expectedto discuss the proposed rule changes at its next business meeting in September of 2008.

The Boyd-Graves Conference Subcommittee on E-Discovery met and considered theproposed rule changes as they now stand (as recommended by the Virginia Supreme Court’sJudicial Council)¯ The Subcommittee reviewed the status of the proposed rules changes and all theforegoing information. The Subcommittee concluded that the Virginia Supreme Court rulepromulgation process is proceeding independently of the Boyd-Graves Conference and the timingand course thereof does not allow at this stage for any further recommendations or input from theSubcommittee or the Boyd-Graves Conference.

The Subcommittee recommends that no action be taken regarding the Uniform RulesRelating to Discovery of Electronically Stored Information drafted by the National Conference ofCommissioners on Uniform State Laws since the proposed changes already address electronicdiscovery. For your convenient reference, a copy of the Uniform Rules Relating to Discovery ofElectronically Stored Information is attached hereto as Exhibit B.

Letter to Hon. Diane M. StricklandJuly 25, 2008Page 4 of 4

Sincerely yours,

/s/

Roger T. CreagerChair

Committee Members: Hon. Clifford R. WecksteinNoel Clinard, Esq.Jay Aceto

Sandra M. Rohrstaff, Esq.Stephen C. Price, Esq.John W. Simek

TO: The Bench and Bar of Virginia

FROM: The Advisory Committee on Rules of Court

DATE: October 1, 2007

Acting in response to a direction by the Chief Justice of the Supreme Court ofVirginia that this topic should be studied, the Advisory Committee prepared an initialand unapproved "discussion draft" of possible rules amendments on the topic of"electronic discovery" (discovery of electronically stored information) and publishedthose provisions in June of 2007. Several detailed sets of helpful comments on thoserules were submitted, including comments by the Boyd-Graves ConferenceCommittee studying this topic, by the Civil Litigation Section of the Virginia BarAssociation, and by Lawyers for Civil Justice.

No commenter has expressed the slightest doubt that the Virginia Rules ofCourt should include and address aspects of the discovery of electronically storedinformation, and the Advisory Committee has unanimously concluded that it shouldpublish a Tentative Draft of such rules, which take into account the detailedcomments provided by those who responded to the initial discussion draft severalmonths ago. It is the Advisory Committee’s plan to consider these draft rules at itsApril, 2008 meeting and to discuss all comments and suggestions received by March15, 2008 concerning the structure and content of the proposed provisions. Ifapproved by the Advisory Committee, such rules proposals would be recommendedto the Judicial Council of Virginia and the Supreme Court, which will decide whetherthe rules should be approved and promulgated as Rules of Court. Comments on thisTentative Draft should be sent by March 15, 2008 to Karl R. Hade, ExecutiveSecretary, Supreme Court of Virginia, 100 North Ninth St., Richmond, VA 23219.

Background. Most Virginia lawyers are aware of the focus on electronicdiscovery today. It was a featured topic at the Virginia Bar Association’s Summer2007 meeting, and the adoption of federal rules on these topics as of December of2006 has spawned books, newsletters and continuing education programs in largenumbers.

The changes involved to modify existing rules to take account of the specialaspects of obtaining discovery of information stored in electronic form are few innumber, but significant in impact. For clarity, commenters suggested, and theAdvisory Committee agreed, that subpoena production provisions should beseparated from the party document production provisions in Rule 3:9. The added orchanged language is shown with underscoring.

Set forth below is the Tentative Draft of Electronic Discovery Rules forVirginia, shown as insertions in the pertinent existing discovery rule provisions.

In response to several comments received, a provision addressing situations where anarguably privileged or protected item has been inadvertently produced has beenadded to Rule 4:1 in this draft: this is a mechanism for halting dissemination and useof a previously-produced item for which a claim of privilege or other protection ofconfidentiality has been made, and allows for any party to make a motion for a rulingwith respect to the claim if the matter is not resolved by agreement of the parties orotherwise.

The Advisory Committee unanimously opposed any automatic or mandatorycost-transfer provisions in respect of the discovery of electronically storedinformation, but has added in response to comments received provisions with respectto the power of the court to make orders allocating the cost of electronic discovery.Also added in response to comments received was a provision dealing with a partymaking copies of data received under a subpoena for use by other parties, and thesharing of costs with respect thereto.

Party and non-party discovery. Finally, in response to suggestions by bargroups, the Advisory Committee agreed that the Rules will be less confusing if theprovisions for non-party subpoenas are separated from the rule on party discovery byway of documents under Rule 4:9. As a result, the provisions currently in Rule 4:9with respect to subpoenas duces tecum have been pulled out to form a separateproposed rule, and the same "e-discovery" edits have been made to that rule, nownumbered 4:9(A).

Tentative Draft Rules

Discovery & Subpoenas for Electronically Stored Information

Rule 4:1. General Provisions Governing Discovery.(a) Discovery Methods. Parties may obtain discovery by one or more of the

following methods: depositions upon oral examination or written questions; writteninterrogatories; production of documents, electronically stored information, or thingsor permission to enter upon land or other property, for inspection and other purposes;physical and mental examinations; and requests for admission.

(b) Scope of Discovery. Unless otherwise limited by order of the court inaccordance with these Rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, notprivileged, which is relevant to the subject matter involved in the pending action,whether it relates to the claim or defense of the party seeking discovery or to theclaim or defense of any other party, including the existence, description, nature,custody, condition and location of any books, documents, or other tangible thingsand the identity and location of persons having knowledge of any discoverablematter. It is not ground for objection that the information sought will be inadmissibleat the trial if the information sought appears reasonably calculated to lead to the

discovery of admissible evidence. Subject to the provisions of Rule 4:8 (g), thefrequency or extent of use of the discovery methods set forth in subdivision (a) shallbe limited by the court if it determines that: (i) the discovery sought is unreasonablycumulative or duplicative, or is obtainable from some other source that is moreconvenient, less burdensome, or less expensive; (ii) the party seeking discovery hashad ample opportunity by discovery in the action to obtain the information sought; or(iii) the discovery is unduly burdensome or expensive, taking into account the needsof the case, the amount in controversy, limitations on the parties’ resources, and theimportance of the issues at stake in the litigation. The court may act upon its owninitiative after reasonable notice to counsel of record or pursuant to a motion undersubdivision (c).

(5) Limitations on Discovery in Certain Proceedings. In any proceeding (1) forseparate maintenance, divorce, or annulment of marriage, (2) for the exercise of theright of eminent domain, or (3) for a writ of habeas corpus or in the nature ofcoramnobis; (a) the scope of discovery shall extend only to matters which are relevant tothe issues in the proceeding and which are not privileged; and (b) no discovery shallbe allowed in any proceeding for a writ of habeas corpus or in the nature of coramnobis without prior leave of the court, which may deny or limit discovery in any suchproceeding. In any proceeding for divorce or annulment of marriage, a notice to takedepositions must be served in the Commonwealth by an officer authorized to servethe same, except that, in eases where such suits have been commenced and anappearance has been made on behalf of the defendant by counsel, notices to takedepositions may be served in accordance with Rule 1:12.

(6) Claims of Privilege or Protection of Trial Preparation Materials.(i~ When a party withholds information otherwise discoverable under these

rules by claiming that it is privileged or subject to protection as trial preparationmaterial, the party shall make the claim expressly and shall describe the nature of thedocuments, communications, or things not produced or disclosed in a manner that,without revealing information itself privileged or protected, will enable other partiesto assess the applicability of the privilege or protection.

(ii) Ifa party_ believes that a document or electronically stored informationthat has already been produced is privileged or its confid.entiali _ty is otherwiseprotected - but the material has been produced inadvertently - the producing partymay notify any other part~ of such claim and the basis for the claimed privilege orprotection. Upon receiving such notice, any party, holding a copy of the designatedmaterial shall sequester or destroy its copies thereof, and shall not duplicate ordisseminate such material pending disposition of the claim of privilege or protectionby agreement, or upon motion by any party_. If a receiving party_ has disclosed theinformation before being notified of the claim of privilege or other protection, thatparty must take reasonable steps to retrieve the designated material. The producingpart3y must preserve the information until the claim of privilege or other protection isresolved.

(7) Electronicallr, Stored Information. A party need not provide discove~ .,ofelectronically stored information from sources that the part~ identifies as notreasonably accessible because of undue burden or cost. On motion to compel

discovery or for a protective order, the party_ from whom discovery is sought mustshow that the information is not reasonably accessible because of undue burden orcost. If that showing is made, the court may nonetheless order discovery from suchsources if the requesting party shows good cause, considering the limitations of Rule4: l(b)(l). The court may specify conditions for the discovery, including allocation ofthe reasonable costs thereof.

Rule 4:4. Stipulations Regarding Discovery.

Unless the court orders otherwise, the parties may by written stipulation (1)provide that depositions may be taken before any person, at any time or place, uponany notice, and in any manner and when so taken may be used like other depositionsand (2) modify the procedures provided by these Rules for other methods ofdiscovery, including discovery_ of electronically stored information. Stipulations mayinclude agreements with non-party witnesses, consistent with Code § 8.01-420.4.Such stipulations shall be filed with the deposition or other discovery completedpursuant thereto.

Rule 4:8. Interrogatories to Parties.

(f) Option to Produce Business Records. Where the answer to an interrogatorymay be derived or ascertained from the business records, including electronicallystored information, of the party upon whom the interrogatory has been served orfrom an examination, audit or inspection of such business records, or from acompilation, abstract or summary based thereon, and the burden of deriving orascertaining the answer is substantially the same for the party serving theinterrogatory as for the party served, it is a sufficient answer to such interrogatory tospecify the records from which the answer may be derived or ascertained and toafford to the party serving the interrogatory reasonable opportunity to examine, auditor inspect such records and to make copies, compilations, abstracts or summaries. Aspecification shall be in sufficient detail to permit the interrogating party to locateand to identify, as readily as can the party served, the records from which the answermay be ascertained. A specification of electronically stored information may bemade under this Rule if the information will be made available in a reasonablyusable form or forms.

Rule 4:9. Production bv Parties of Documents, Electronically StoredInformation, and Things; Entry on Land for Inspection and OtherPurposes; Production at Trial. [Nonparty provisions no,, moved to 4:9A]

(a) Scope. Any party may serve on any other party a request (1) to produce andpermit the party making the request, or someone acting on his behalf, to inspect, ~copy, test, or sample any designated documents or electronically stored information(including writings, drawings, graphs, charts, photographs, ~ and other

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data or data compilations stored in any medium from which information can beobtained, translated, if necessary, by the respondent "..~e’.:gk a..et~tlea ~evlce~. intoreasonably usable form), or to inspect, and copy, test, or sample any designatedtangible things which constitute or contain matters within the scope of Rule 4:1 (b)and which are in the possession, custody, or control of the party upon whom therequest is served; or (2) to produce any such documents or electronically storedinformation to the court in which the proceeding is pending at the time of trial; or (3)to permit entry upon designated land or other property in the possession or control ofthe party upon whom the request is served for the purpose of inspection andmeasuring, surveying, photographing, testing, or sampling the property or anydesignated object or operation thereon, within the scope of Rule 4: l(b).

(b) Procedure.(i) Initiation of the Request. The request may, without leave of court, be

served upon the plaintiff after commencement of the action and upon any other partywith or after service of the complaint upon that party. The request shall set forth theitems to be inspected either by individual item or by category, and describe each itemand category with reasonable particularity. The request shall specify a reasonabletime, place, period and manner of making the inspection and performing the relatedacts. The request may specifi/, the form or forms in which electronically storedinformation is to be produced.

(ii) Response. The party upon whom the request is served shall serve awritten response within 21 days after the service of the request, except that adefendant may serve a response within 28 days after service of the complaint uponthat defendant. The court may allow a shorter or longer time. The response shallstate, with respect to each item or category, that inspection and related activities willbe permitted as requested, unless the request is objected to, including an objection tothe requested form or forms for producing electronically stored information, in,Mg, cta-o~ stating the reasons for the objection ~. If objection is madeto part of an item or category, the part shall be specified and production shall bepermitted as to the remaining parts. If objection is made to the requested form orforms for producing electronically stored information -- or if no form was specifiedin the request-- the responding party must state the form or forms it intends to use.The party submitting the request may move for an order under Rule 4:12(a) withrespect to any objection to or other failure to respond to the request or any partthereof, or any failure to permit inspection as requested.

(iii) Organization, Reasonable Accessibili~, and Forms of Production.Unless the parties otherwise agree, or the court otherwise orders:

A~A)_A party who produces documents for inspection either shall producethem as they are kept in the usual course of business or shall organize and label themto correspond with the categories in the request.

03) A party, responding to a request for production under this Rule need notprovide discovery of electronically stored information from sources the party.identifies as not reasonably accessible because of undue burden or cost. On motionto compel discovery or for a protective order, the party from whom discovery issought must show that the information sought is not reasonably accessible because ofundue burden or cost. If that showing.is, made, the court may nonetheless orderdiscovery from such sources if the requesting party shows good cause, considering

the limitations of Rule 4:1 (b)(1). The court may speci _fy conditions for the discovery_,including allocation of the reasonable costs thereof.

(C) If a request does not specify the form or forms for producingelectronically stored information, a responding party must produce the informationas it is ordinarily maintained if it is reasonably usable in such form or forms, or mustproduce the information in another form or forms in which it is reasonably usable. Aparty need not produce the same electronically stored information in more than oneform.

(�) (d)-Proceedings on Failure or Refusal to Comply. Ifa party fails or refusesto obey an order made under section (b) of this Rule, the court may proceed asprovided by Rule 4:12(b)(2).

(d) (e) Filing. Requests to a party pursuant to this Rule and responses orobjections shall be filed as provided in Rule 4:8(c).

Rule 4:9A. Production from Non-Parties of Documents,Electronically Stored Information, and Things and Entry on Landfor Inspection and Other Purposes; Production at Trial.[Moved from Rule 4:9for clarity, and edited with e-discoveryprovisions]

(.~ Issuance of a Subpoena Duces Tecum, Except as provided in paragraph (d) ofthis Rule, a subpoena duces tecum may be issued:

(1) By the clerk of court. Upon written request therefor filed with the clerk ofthe court in which the action or suit is pending by counsel of record for any party orby a party having no counsel in any pending case, with a certificate that a copythereof has been served pursuant to Rule 1:12 upon counsel of record and to partieshaving no counsel, the clerk shall issue to a person not a party therein a subpoenaduces tecum subject to this Rule.

(2) By an attorney. In a pending civil proceeding, a subpoena duces tecummay be issued by an attorney-at-law as an officer of the court if he or she is an activemember of the Virginia State Bar at the time of issuance, An attorney may not issuea subpoena duces tecum in those civil proceedings excluded in Virginia Code § 8.01-407. An attorney-issued subpoena duces tecum must be signed as ira pleading andmust be accempa~ie~vu~" +~’~.~ .... +.-vz~.~--~" ..... ’--’..j contain the attorney’s address, telephonenumber and Virginia State Bar identification number. A copy of any attorney-issuedsubpoena duces tecum must be mailed or delivered to the clerk’s office of the court inwhich the case is pending ~ on the day of issuance with a certificatethat a copy thereof has been served pursuant to Rule 1:12 upon counsel of record andto parties having no counsel T¢

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~is Rule, ~ subp~n~ du~s te~um sh~ll ~ommand ~ ~son to whom it isor som~on~ a~ting on his b~half, to produ~ the do~n~, ~l~e~oni~ally storedinfo~ation, ~ o~ d~si~ated ~ngibl~ things (including writings, dr~w~gs, ~aphs,~h~s, photo~phs, ~, ~d other da~ or d~ ~mpilations stor~m~d~um ~om which info~ation ~n ~ ob~in~, ~nslat~d, if ne~ss~, by th~

....... into r~asonably u~bl~ fo~) d~si~at~d ~ndrespondent *~ ..... ~ a~.~,~-described in ~id request, ~d to pe~it the p~ fling such request, or som~nea~ing ~ his ~half, to ~spect and ~py, tesk or ~mple any desi~at~ ~ngiblethings which constitute or con~ maae~ wi~in the scope of Rule 4: l(b) which arein ~e ~ssession, custody or eon~ol of such person to whom the subpoena isdir~ted, at a t~e ~d place ~d for the ~fi~ specified in the subpoena.~sub~ena may s~ci~ ~e fo~ or fo~s in which el~oniea!ly st~ed info~ationis to ~ produced.

[¢) R~nding to a Subpoena; Obi~fions; El~ctroni~llv S/or~Information.

(1) A per~n responding to a sub~na to produce d~uments shall pr~uce¯em as they are kept in ~e usual course of business or shall organic ~d label ~emto co~espond with the c~egofies ~ the dem~d.

(~ ~e couP, u~n ~aen motion promptly made by the person so requiredto produce, or by the p~ again~ whom such production is sought, may (1) q~shor m~i~ the subpoen~ or the method or fo~ for pr~uction of electronicallystored info~ation, if u~e~e=a~le ~a_ ~vw~oo~"’~. ~ ~e subp~na would othe~iseunduly b~densome or expensive, (2) condition denial of the motion to q~h ormodi~ upon the adv~ment by the pa~ ~ whose behalf the subp~na is issued ofsome or all of~e re~onable cost of producing ~e d~ents, elee~onically storedinfo~ation, ~d ~ngible things so desi~ated ~d described or (3) direct that ~edoeumen~ ~d ~ngible things subpoenaS, including elec~onically ~oredinfo~ation (unless ~other l~ation for production is a~ upon by ~e request~gand produc~g v~ies), be re~m~ only to the office of the clerk of the cou~ t~oughwhich such d~uments ~d ~gible thugs ~e sub~n~d ~ which event, u~nrequest of any p~ in inte~s~ or his aaomey, the clerk of such cou~ shall ~itthe withdrawal of such documents and ~ngible things by such p~ or his aRomeyfor such reasonable peri~ oft~e as will ~it his ~spection, photo~aph~g, orcowing ther~f.

(3) A person res~nding to a sub~ena need not provide diseove~ ofelec~nieally stored info~ation ~om so~ees ~e responder id~tifies as not~asonably accessible ~eause of undue burden or cost. On motion to eom~lpr~ction or to qu~h a sub~en~ ~e person from whom production is sou~t~der ~e sub~ena must show ~at ~e ~fo~ation sou~t is not re~onably

accessible because of undue burden or cost. If that showing is made, the court maynonetheless order production of responsive material from such sources if thesubpoenaing party_ shows good cause, considering the limitations of Rule 4: l(b)(1).The court may speci _fy conditions for the production of such information, includingallocation of the reasonable costs thereof.

(4) If a subi~oena does not specifi/the form or forms for producingelectronically stored information, a person responding thereto must produce theinformation as it is ordinarily maintained if it is reasonably usable in such form orforms, or must produce the information in another form or forms in which it isreasonably usable. A person responding to a subpoena need not produce the sameelectronically stored information in more than one form.

(d) Certain Officials. No request to produce made pursuant to paragraph (b) aboveshall be served, and no subpoena provided for in paragraph (c) above shall issue,until prior order of the court is obtained when the party upon whom the request is tobe served or the person to whom the subpoena is to be directed is the Governor,Lieutenant Governor, or Attorney General of this Commonwealth, or a judge of anycourt thereof; the President or Vice President of the United States; any member ofthe President’s Cabinet; any Ambassador or Consul; or any Military Officer on activeduty holding the rank of Admiral or General.

(e) Certain Health Records. Patient health records protected by the privacyprovisions of Code Section 32.1-127.1:03 shall be disclosed only in accordance withthe provisions and procedures prescribed by that statute.

(f) Copies of Documents and Other Subpoenaed Information.(1) Documents. When one party to a civil proceeding subpoenas documents

...... :-- .....~- ....-.-, ,h~ bp ing p rty ipt bp........... ¯ , .......v--~, ....su oena a , upon rece of the su oenaeddocuments, shall, if requested, provide true and full copies of the same to any partyor to the attorney for any other party in accordance with Code § 8.01-417(B).

(2) El~tronieall¥ stored information. When one party to a civil proceedingsubpoenas and obtains electronically stored information, the subpoenaing party shall,if requested, provide true and full copies of the same to .ar.w party_ or that party’sattorney, in the form the subpoenaing party received the information, uponreimbursement of the proportionate cost of obtaining such materials.

(g) Proceedings on Failure or Refusal to Comply. If a non-party, after beingserved with a subpoena issued under the provisions of so~ioa-(j~ this Rule, failsor refuses to comply therewith, he may be proceeded against as for contempt of courtas provided in § t8.2-456.

Rule 4:12. Failure to Make Discovery; Sanctions.

(e) Electronically, Stored Information. Absent exceptional circumstances, a courtshould not impose sanctions upon a party for failing to provide electronically storedinformation lost as a result of the routine, good-faith operation of an electronicinformation system.

Rule 4:13. Pretrial Procedure; Formulating Issues.The court may in its discretion direct the attorneys for the parties to appear before

it for a conference to consider:(1) A determination of the issues;(2) A plan and schedule of discovery;(3) Any limitations on the scope and methods of discovery;(4) The necessity or desirability of amendments to the pleadings;(5) The possibility of obtaining admissions of fact and of documents which will

avoid unnecessary proof;(6) The limitation of the number of expert witnesses;(7) The advisability of a preliminary reference of issues to a master for findings to

be used as evidence when the trial is to be by jury;(8) issues relating to the preservation of potentially discoverable information,

including electronically stored information and information that may be located insources that are believed not reasonably accessible because of undue burden or cost;

(9) provisions for disclosure or discovery of electronically stored information;(1 O) any agreements the parties reach for asserting claims of privilege or of

protection as trial-preparation material after production;(11) Such other matters as may aid in the disposition of the action.The court shall make an order which recites the action taken at the conference, the

amendments allowed to the pleadings, the agreements made by the parties as to anyof the matters considered, and which limits the issues for trial to those not disposedof by admissions or agreements of counsel; and such order when entered controls thesubsequent course of the action, unless modified at the trial to prevent manifestinjustice.

FOR APPROVAL

UNIFORM RULES RELATING TO DISCOVERY OF

ELECTRONICALLY STORED INFORMATION

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

MEETING IN ITS ONE-HUNDRED-AND-FIFTEENTH YEARPASADENA, CALIFORNIAJULY 27 -AUGUST 3, 2007

UNIFORM RULES RELATING TO DISCOVERY OF

ELECTRONICALLY STORED INFORMATION

UNIFORM RULES RELATING TO DISCOVERY OF

ELECTRONICALLY STORED INFORMATION

RULE 1. DEFINITIONS. In these rules:

(1) "Discovery" means the process of providing information in a civil proceeding in thecourts of this state pursuant to [insert reference to state rules of civil procedure] or these rules.

(2) "Electronic" means relating to technology having electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

(3) "Electronically stored information" means information that is stored in an electronic

medium and is retrievable in perceivable form.

(4) "Person" means an individual, corporation, business trust, estate, trust, partnership,

limited liability company, association, joint venture, public corporation, government or

governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

Judicial Note

The term "civil proceeding" as used in the definition of "Discovery" may need to bemodified in certain states to specify that it includes civil courts with differing or limitedjurisdiction within the same state. As the term is used in subsection (1), it is intended toencompass not only civil courts of general jurisdiction, but also courts of limited jurisdictionsuch as domestic relations and probate courts. The term is used in various rules, includingRules3, 4and7.

RULE 2. SUPPLEMENTAL RULES OF DISCOVERY. Unless displaced by

particular provisions of these rules, [insert reference to state rules of civil procedure] supplement

these rules.

RULE 3. CONFERENCE, PLAN AND REPORT TO THE COURT.

(a) Unless the parties otherwise agree or the court otherwise orders, not later than [21]

days after each responding party first appears in a civil proceeding, all parties that have appeared

in the proceeding shall confer concerning whether discovery of electronically stored information

is reasonably likely to be sought in the proceeding, and if so the parties at the conference shall

discuss:

(1) any issues relating to preservation of discoverable information;

(2) the form in which each type of the information will be produced;

(3) the period within which the information will be produced;

(4) the method for asserting or preserving claims of privilege or of protection of

the information as trial-preparation materials, including whether such claims may be asserted

after production;

(5) the method for asserting or preserving confidentiality and proprietary status of

information relating to a party or a person not a party to the proceeding;

(6) whether allocation among the parties of the expense of production is

appropriate; and,

(7) any other issue relating to the discovery of electronically stored information.

(b) If discovery of electronically stored information is reasonably likely to be sought in

the proceeding, the parties shall:

(1) develop a proposed plan relating to discovery of the information; and

(2) not later than [14] days after the conference under subsection (a), submit to

the court a written report that summarizes the plan and states the position of each party as to any

issue about which they are unable to agree.

RULE 4. ORDER GOVERNING DISCOVERY.

(a) In a civil proceeding, the court may issue an order governing the discovery of

electronically stored information pursuant to:

(1) a motion by a party seeking discovery of the information or by a party or

person from which discovery of the information is sought;

(2) a stipulation of the parties and of any person not a party from which discovery

of the information is sought; or

(3) the court’s own motion, after reasonable notice to, and an opportunity to be

heard from, the parties and any person not a party from which discovery of the information is

sought.(b) An order governing discovery of electronically stored information may address:

(1) whether discovery of the information is reasonably likely to be sought in the

proceeding;

(2) preservation of the information;

(3) the form in which each type of the information is to be produced;

(4) the time within which the information is to be produced;

(5) the permissible scope of discovery of the information;

(6) the method for asserting or preserving claims of privilege or of protection of

the information as trial-preparation material aiter production;

(7) the method for asserting or preserving confidentiality and the proprietary

status of information relating to a party or a person not a party to the proceeding;

(8) allocation of the expense of production; and

(9) any other issu~ relating to the discovery of the information.

RULE 5. LIMITATION ON SANCTIONS. Absent exceptional circumstances, the

court may not impose sanctions on a party under these rules for failure to provide electronically

stored information lost as the result of the routine, good-faith operation of an electronic

information system.

RULE 6. REQUEST FOR PRODUCTION.

(a) In a civil proceeding, a party may serve on any other party a request for production of

electronically stored information and for permission to inspect, copy, test, or sample the

information.

(b) A party on which a request to produce electronically stored information has been

served shall, in a timely manner, serve a response on the requesting party. The response must

state, with respect to each item or category in the request:

(1) that inspection, copying, testing, or sampling of the information will be

permitted as requested; or

(2) any objection to the request and the reasons for the objection.

RULE 7. FORM OF PRODUCTION.

(a) A party requesting production of electronically stored information may specify the

form in which each type of electronically stored information is to be produced.

(b) If a party responding to a request for production of electronically stored information

objects to a specified form for producing the information, or if no form is specified in the

request, the responding party shall state in its response the form in which it intends to produce

each type of the information.

(c) Unless the parties otherwise agree or the court otherwise orders:

(1) ira request for production does not specify a form for producing a type of

electronically stored information, the responding party shall produce the information in a form in

which it is ordinarily maintained or in a form that is reasonably usable; and

(2) a party need not produce the same electronically stored information in more

than one form.

RULE 8. LIMITATIONS ON DISCOVERY.

(a) A party may object to discovery of electronically stored information from sources

that the party identifies as not reasonably accessible because of undue burden or expense. In itsobjection the party shall identify the reason for such undue burden or expense.

(b) On motion to compel discovery or for a protective order relating to the discovery of

electronically stored information, a party objecting bears the burden of showing that the

information is from a source that is not reasonably accessible because of undue burden or

expense.

(e) The court may order discovery of electronically stored information that is from a

source that is not reasonably accessible because of undue burden or expense if the party

requesting discovery shows that the likely benefit of the proposed discovery outweighs the likely

burden or expense, taking into account the amount in controversy, the resources of the parties,

the importance of the issues, and the importance of the requested discovery in resolving the

issues.

(d) If the court orders discovery of electronically stored information under subsection (c)

it may set conditions for discovery of the information, including allocation of the expense of

discovery.(e) The court shall limit the frequency or extent of discovery of electronically stored

information, even from a source that is reasonably accessible, if the court determines that:

(1) it is possible to obtain the information from some other source that is more

convenient, less burdensome, or less expensive;

(2) the discovery sought is unreasonably cumulative or duplicative;

(3) the party seeking discovery has had ample opportunity by discovery in the

proceeding to obtain the information sought; or

(4) the likely burden or expense of the proposed discovery outweighs the likely

benefit, taking into account the amount in controversy, the resources of the parties, the

importance of the issues, and the importance of the requested discovery in resolving the issues.

RULE 9. CLAIM OF PRIVILEGE OR PROTECTION AFTER PRODUCTION.

(a) If electronically stored information produced in discovery is subject to a claim of

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privilege or of protection as trial-preparation material, the party making the claim may notify anyparty that received the information of the claim and the basis for the claim.

(b) After being notified of a claim of privilege or of protection under subsection (a), aparty shall immediately sequester the specified information and any copies it has and:

(I) return or destroy the information and all copies and not use or disclose the

information until the claim is resolved; or(2) present the information to the court under seal for a determination of the

claim and not otherwise use or disclose the information until the claim is resolved.(c) Ifa party that received information under subsection (b) disclosed it before being

notified, the party shall take reasonable steps to retrieve the information.RULE 10. SUBPOENA FOR PRODUCTION.(a) A subpoena in a civil proceeding may require that electronically stored information

be produced and that the party serving the subpoena or person acting on the party’s request bepermitted to inspect, copy, test, or sample the information.

(b) Subject to subsections (c) and (d), Rules 7, 8 and 9 apply to a person responding to a

subpoena under subsection (a) as if that person were a party.(c) A party serving a subpoena requiring production of electronically stored information

shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the

subpoena.(d) An order of the court requiring compliance with a subpoena issued under this rule

must provide protection to a person that is neither a party nor a party’s officer from undueburden or expense resulting from compliance.