Electronic

Discovery in Illinois

Presented By:

Illinois Association of Defense Trial Counsel

Illinois Judges Association

Thursday, February 19, 2015 4:30 p.m.

Seminar Host:

Hinshaw & Culbertson, LLP 222 N. LaSalle Street, #300, Chicago

Electronic Discovery in Illinois

Illinois Association of Defense Trial Counsel | Illinois Judges Association

February 19, 2015

Schedule

4:30 - 5:00 Registration & Refreshments

5:00 Rules & Issues Surrounding E-Discovery in Illinois

Presented by: Steven M. Puiszis, Hinshaw & Culbertson, LLP

5:45 - 6:45 Practical Application of E-Discovery in Illinois

Moderator: David H. Levitt, Hinshaw & Culbertson, LLP

Panelists: Hon. Keith Brown (Ret.), Meyers & Flowers

Hon. Maureen E. Connors, Illinois Appellate Court, First District

Joseph R. Marconi, Johnson & Bell, Ltd.

W. Jason Rankin, HeplerBroom, LLC

6:45 - 8:00 Cocktail Reception

Hon. Keith Brown (Ret.), Meyers & Flowers

Judge F. Keith Brown (Ret.) served 23 years on the bench in the 16th Judicial Circuit. Judge Brown has extensive experience in personal injury and other civil matters. He has presided over a number of mil-lion dollar jury verdicts including a 23 million dollar medical negligence verdict which is still the largest in the history of the 16th Judicial Circuit.

Hon. Maureen E. Connors, Illinois Appellate Court, First District

Maureen Elizabeth Connors received her bachelor of arts degree in History from Loyola University of Chicago in 1972, and her juris doctor from Illinois Institute of Technology Chicago-Kent College of Law. She began her legal career in private practice and then became an Assistant General Attorney for the Chicago Park District. Judge Connors was selected as an associate judge of the Circuit Court of Cook County in 1988, and served in that capacity in Traffic Court, Domestic Violence Court, the First Munici-pal District Court, and the Fifth Municipal District Court in Bridgeview, Illinois. Elected as a circuit judge in 1994, Judge Connors was then assigned to the Probate Division, where she served until her appoint-ment to the Appellate Court, First District, in October of 2010. Judge Connors is a member and chair of the Supreme Court Committee on Discovery Procedures.

Featured Speakers

Featured Speakers

Illinois Association of Defense Trial Counsel | Illinois Judges Association

Joseph R. Marconi, Johnson & Bell, Ltd.

Joseph R. Marconi is the chair of Johnson & Bell's Business Litigation group and Professional Liability group. He handles and supervises complex civil litigation, including real estate and commercial dis-putes, professional liability and employment law. Mr. Marconi successfully tries cases to verdict for various professionals including attorneys, accountants, appraisers and brokers. He prosecutes and de-fends cases involving trade secrets, unfair competition, trademark and patent infringement. He is a member of the Lawyers Committee of the National Center for State Courts. The Illinois Supreme Court appointed Mr. Marconi to be an adviser to the Judicial Conference Committee on discovery which worked on the E-discovery amendments to the Illinois Supreme Court Rules.

David H. Levitt, Hinshaw & Culbertson, LLP

David Levitt, a partner with Hinshaw & Culbertson, LLP, is an experienced trial lawyer who focuses his practice in a number of distinct areas. His primary practice is intellectual property, with wide experi-ence in insurance, commercial litigation, products liability and trucking. David is the current president of the Illinois Association of Defense Trial Counsel. Mr. Levitt joined Hinshaw & Culbertson LLP in Sep-tember 1979.

Steven M. Puiszis, Hinshaw & Culbertson, LLP

Steven Puiszis is a partner in the Chicago office of Hinshaw & Culbertson LLP, and serves as the Firm’s Deputy General Counsel. Steve is a member of the Firm’s Lawyers for the Professions Practice Group and is the head of its Ediscovery Response Team. He also is a member of the Seventh Circuit Ediscovery Pilot Program Committee. Steve is a past president of the Illinois Association of Defense Trial Counsel and is a former member of DRI’s Board of Directors and also served as DRI’s Secretary Treasurer. He has written articles and several book chapters on electronic discovery. Steve also is the author of Illinois Governmental Tort and Section 1983 Civil Rights Liability, 3rd. Ed., published by LexisNexis. He is a graduate of Loyola University of Chicago’s School of Law and began his legal career as a prosecutor in the Cook County State’s Attorney’s Office.

W. Jason Rankin, HeplerBroom LLC

W. Jason Rankin is a partner with the firm of HeplerBroom LLC, where he focuses his practice on trials involving complex litigation matters, including class actions, pharmaceutical litigation, product liability, banking litigation and insurance defense. Mr. Rankin earned his JD from the Washington University School of Law and is a member of the Illinois Association of Defense Trial Counsel, International Association of Defense Counsel and the Madison County Bar Association. Mr. Rankin is also a member of DRI and served as the Chair of the DRI Class Action Specialized Litigation Group.

Jeremy T. Burton, Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd. James P. DuChateau, Johnson & Bell, Ltd. Hon. Michael B. Hyman, Illinois Appellate Court, First District David H. Levitt, Hinshaw & Culbertson, LLP Hon. Daniel B. Shanes, Circuit Court of Lake County

We would like to thank the following individuals for their work in putting this seminar together.

Planning Committee

Illinois Association of Defense Trial Counsel | Illinois Judges Association

Attendee Roster

Hon. Steven James Bernstein, Circuit Court of Cook County

Hon. Keith Brown (Ret.), Meyers & Flowers

Jeremy Burton, Lipe Lyons Murphy Nahrstadt & Pontikis Ltd.

Hon. Jeanne Cleveland Bernstein, Circuit Court of Cook County

Hon. Maureen Connors, Illinois Appellate Court, First District

Hon. Barb Crowder, Third Judicial Circuit Court

Edward Dutton, PDRMA

Donald Eckler, Pretzel & Stouffer, Chartered

John Eggum, Foran Glennon Palandech Ponzi & Rudloff, PC

Edward Grasse, Busse, Busse & Grasse, P.C.

Hon. John Huff, Circuit Court of Cook County

John Huston, Tressler LLP

Kimberly Koester, Illinois Circuit Judge

David Levitt, Hinshaw & Culbertson LLP

Erica Longfield, Swanson, Martin & Bell, LLP

Joseph Marconi, Johnson & Bell, Ltd.

Michael Marick, Meckler Bulger Tilson Marick & Pearson, LLP

Hon. Maritza Martinez, Circuit Court of Cook County

Mark McClenathan, Heyl, Royster, Voelker & Allen

James McKnight, Thomas & Associates

R. Mark Mifflin, Giffin, Winning, Cohen & Bodewes, P.C.

Bradley Nahrstadt, Lipe Lyons Murphy Nahrstadt & Pontikis Ltd.

Hon. Jorge Ortiz, Ninteenth Judicial Circuit Court

James Ozog, Goldberg Segalla LLP

John Pappas, Jr, Altep, Inc.

Steven Puiszis, Hinshaw & Culbertson LLP

W. Jason Rankin, HeplerBroom LLC

Hon. Charles Reynard, Eleventh Judicial Circuit Court

Diane Shelley, Illinois Judges Association

Patrick Stufflebeam, HeplerBroom LLC

Hon. James Sullivan (Ret.)

Hon. Al Swanson (Ret.), Circuit Court of Cook County

Michelle Wahl, Swanson, Martin & Bell, LLP

John Walsh, Pretzel & Stouffer, Chartered

Holly Whitlock, Aleen R. Tiffany, P.C.

David Wix, Tarpey Wix LLC

Sandra Wulf, CAE, IOM, Illinois Association of De-fense Trial Counsel

Christine Yurchik, Bruce Farrell Dorn & Associates

Special Thanks

Our sincere thanks to Hinshaw & Culbertson, LLP for hosting this event.

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M.R. 3140

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

Order entered May 29, 2014.

(Deleted material is struck through and new material is underscored.)

Effective immediately, Supreme Court Rule 138 is amended and Supreme Court Rule 219

Committee Comments are revised, and effective July 1, 2014, Supreme Court Rules 201, 204,

214, 216, 218, 243, 306, and 707 are amended, as follows.

Amended Rule 138

Rule 138. Personal Identity Information

(a) Applicability.

(1) In civil cases, personal identity information shall not be included in documents or exhibits

filed with the court except as provided in paragraph (c). This rule applies to paper and electronic

filings.

(2) This rule does not apply to cases filed confidentially and not available for public

inspection.

(b) Personal identity information, for purposes of this rule, is defined as follows:

(1) Social Security and individual taxpayer-identification numbers;

(2) birth dates [eff. Jan. 1, 2015];

(3) names of individuals known to be minors [eff. Jan. 1, 2015];

(4) driver’s license numbers;

(5) financial account numbers; and

(6) debit and credit card numbers.

A court may order other types of information redacted or filed confidentially, consistent with the

purpose and procedures of this rule.

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(c) A redacted filing of personal identity information for the public record is permissible and

shall only include:

(1) the last four digits of the Social Security or individual taxpayer-identification number;

(2) the year of the individual’s date of birth [eff. Jan. 1, 2015];

(3) the minor’s initials [eff. Jan. 1, 2015];

(4) the last four digits of the driver’s license number;

(5) the last four digits of the financial account number; and

(6) the last four digits of the debit and credit card number.

When the filing of personal identity information is required by law, ordered by the court, or

otherwise necessary to effect disposition of a matter, the party shall file a form in substantial

compliance with the appended “Notice Of Confidential Information Within Court Filing.” This

document shall contain the personal identity information in issue, and shall be impounded by the

clerk immediately upon filing. Thereafter, the document and any attachments thereto shall

remain impounded and be maintained as confidential, except as provided in paragraph (d) or as

the court may order.

After the initial impounded filing of the personal identity information, subsequent documents

filed in the case shall include only redacted personal identity information with appropriate

reference to the impounded document containing the personal identity information.

If any of the impounded personal identity information in the initial filing subsequently

requires amendment or updating, the responsible party shall file the amended or additional

information by filing a separate “Notice Of Confidential Information Within Court Filing” form.

(d) The information provided with the “Notice of Personal Identity Confidential Information

Within Court Filing” shall be available to the parties, to the court, and to the clerk in

performance of any requirement provided by law, including the transfer of such information to

appropriate justice partners, such as the sheriff, guardian ad litem, and the State Disbursement

Unit (SDU), the Secretary of State or other governmental agencies, and legal aid agencies or bar

association pro bono groups. In addition, the clerk, the parties, and the parties’ attorneys may

prepare and provide copies of documents without redaction to financial institutions and other

entities or persons which require such documents.

(e) Neither the court nor the clerk is required to review documents or exhibits for compliance

with this rule. If the clerk becomes aware of any noncompliance, the clerk may call it to the

court’s attention. The court, however, shall not require the clerk to review documents or exhibits

for compliance with this rule.

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(f)(1) If a document or exhibit is filed containing personal identity information, a party or any

other person whose information has been filed may move that the court order redaction and

confidential filing as provided in paragraph (b). The motion shall be impounded, and the clerk

shall remove the document or exhibit containing the personal identity information from public

access pending the court’s ruling on the substance of the motion. A motion requesting redaction

of a document in the court file shall have attached a copy of the redacted version of the

document. If the court allows the motion, the clerk shall retain the unredacted copy under

impoundment and the redacted copy shall become part of the court record.

(2) If the court finds the inclusion of personal identity information in violation of this rule

was willful, the court may award the prevailing party reasonable expenses, including attorney

fees and court costs.

(g) This rule does not require any clerk or judicial officer to redact personal identity

information from the court record except as provided in this rule.

Adopted Oct. 24, 2012, eff. July 1, 2013; amended June 3, 2013, eff. July 1, 2013; amended June 27,

2013, eff. July 1, 2013; amended Dec. 24, 2013, eff. Jan. 1, 2014; amended May 29, 2014, eff.

immediately.

Committee Comments

October 24, 2012

(Revised June 3, 2013)

(Revised December 24, 2013)

(Revised May 29, 2014)

Paragraph (a)

Supreme Court Rule 138, adopted October 24, 2012, prohibits the filing of personal identity

information that could be used for identity theft. For instance, financial disclosure statements

used in family law cases typically contain a variety of personal information that shall remain

confidential to protect privacy concerns.

Paragraph (b)

While paragraph (b) defines the most common types of personal identity information, it

further allows the court to order redaction or confidential filing of other types of information as

necessary to prevent identity theft.

Paragraph (c)

The procedures in paragraph (c) address the filing of personal identity information in

redacted form for the public record. Where the personal identity information is required by law,

ordered by the court, or otherwise necessary to effect a disposition of a matter, the litigant shall

file the document in redacted form and separately file the subject personal identity information in

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a protected document titled a “Notice of Personal Identity Confidential Information Within Court

Filing,” using the appended form. The filing of a separate document without redaction is not

necessary or required because the personal identity information will be available to authorized

persons by referring to the “Notice of Personal Identity Confidential Information Within Court

Filing” form.

Paragraph (d)

The clerk of court can utilize personal identity information and share that information with

other agencies, entities and individuals, as provided by law.

[Appendix]

In the Circuit Court of the __________________ Judicial Circuit,

_________ County, Illinois

(Or, In the Circuit Court of Cook County, Illinois)

____________________ )

Plaintiff/Petitioner, )

)

v. ) Case No. ______________

)

____________________ )

Defendant/Respondent )

NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING

Pursuant to Illinois Supreme Court Rule 138(c), the filer of a document containing personal

identity information required by law, ordered by the court, or otherwise necessary to effect

disposition of a matter shall, at the time of such filing, include this confidential information form

which identifies the personal identity information redacted from such filing pursuant to Rule

138(c), and which will be redacted from future filings to protect the subject personal identity

information. This personal identity information will not be available to the public and this

document will be stored in a separate location from the case file.

Party/Individual Information:

1. Name: _______________________

Address: _______________________

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_______________________

Phone: _______________________

SSN: _______________________

Other personal identity information as defined in Rule 138(b), to the extent applicable:

2. Name: _______________________

Address: _______________________

_______________________

Phone: _______________________

SSN: _______________________

Other personal identity information as defined in Rule 138(b), to the extent applicable:

(Attach additional pages, if necessary.)

Amended Rule 201

Supreme Court Rule 201. General Discovery Provisions

(a) Discovery Methods. Information is obtainable as provided in these rules through any of

the following discovery methods: depositions upon oral examination or written questions, written

interrogatories to parties, discovery of documents, objects or tangible things, inspection of real

estate, requests to admit and physical and mental examination of persons. Duplication of

discovery methods to obtain the same information and discovery requests that are

disproportionate in terms of burden or expense should be avoided.

(b) Scope of Discovery.

(1) Full Disclosure Required. Except as provided in these rules, a party may obtain by

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discovery full disclosure regarding any matter relevant to the subject matter involved in the

pending action, whether it relates to the claim or defense of the party seeking disclosure or of

any other party, including the existence, description, nature, custody, condition, and location

of any documents or tangible things, and the identity and location of persons having

knowledge of relevant facts. The word "documents," as used in these rules as used in Part E

of Article II, includes, but is not limited to, papers, photographs, films, recordings,

memoranda, books, records, accounts, communications and all retrievable information in

computer storage and electronically stored information as defined in Rule 201(b)(4).

(2) Privilege and Work Product. All matters that are privileged against disclosure on the

trial, including privileged communications between a party or his agent and the attorney for

the party, are privileged against disclosure through any discovery procedure. Material

prepared by or for a party in preparation for trial is subject to discovery only if it does not

contain or disclose the theories, mental impressions, or litigation plans of the party’s

attorney. The court may apportion the cost involved in originally securing the discoverable

material, including when appropriate a reasonable attorney’s fee, in such manner as is just.

(3) Consultant. A consultant is a person who has been retained or specially employed in

anticipation of litigation or preparation for trial but who is not to be called at trial. The

identity, opinions, and work product of a consultant are discoverable only upon a showing of

exceptional circumstances under which it is impracticable for the party seeking discovery to

obtain facts or opinions on the same subject matter by other means.

(4) Electronically Stored Information. ("ESI") shall include any writings, drawings,

graphs, charts, photographs, sound recordings, images, and other data or data compilations in

any medium from which electronically stored information can be obtained either directly or,

if necessary, after translation by the responding party into a reasonably usable form.

(c) Prevention of Abuse.

(1) Protective Orders. The court may at any time on its own initiative, or on motion of

any party or witness, make a protective order as justice requires, denying, limiting,

conditioning, or regulating discovery to prevent unreasonable annoyance, expense,

embarrassment, disadvantage, or oppression.

(2) Supervision of Discovery. Upon the motion of any party or witness, on notice to all

parties, or on its own initiative without notice, the court may supervise all or any part of any

discovery procedure.

(3) Proportionality. When making an order under this Section, the court may determine

whether the likely burden or expense of the proposed discovery, including electronically

stored information, outweighs the likely benefit, taking into account the amount in

controversy, the resources of the parties, the importance of the issues in the litigation, and the

importance of the requested discovery in resolving the issues.

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(d) Time Discovery May Be Initiated. Prior to the time all defendants have appeared or are

required to appear, no discovery procedure shall be noticed or otherwise initiated without leave

of court granted upon good cause shown.

(e) Sequence of Discovery. Unless the court upon motion, for the convenience of parties

and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used

in any sequence, and the fact that a party is conducting discovery shall not operate to delay any

other party’s discovery.

(f) Diligence in Discovery. The trial of a case shall not be delayed to permit discovery

unless due diligence is shown.

(g) Discovery in Small Claims. Discovery in small claims cases is subject to Rule 287.

(h) Discovery in Ordinance Violation Cases. In suits for violation of municipal ordinances

where the penalty is a fine only no discovery procedure shall be used prior to trial except by

leave of court.

(i) Stipulations. If the parties so stipulate, discovery may take place before any person, for

any purpose, at any time or place, and in any manner.

(j) Effect of Discovery Disclosure. Disclosure of any matter obtained by discovery is not

conclusive, but may be contradicted by other evidence.

(k) Reasonable Attempt to Resolve Differences Required. The parties shall facilitate

discovery under these rules and shall make reasonable attempts to resolve differences over

discovery. Every motion with respect to discovery shall incorporate a statement that counsel

responsible for trial of the case after personal consultation and reasonable attempts to resolve

differences have been unable to reach an accord or that opposing counsel made himself or herself

unavailable for personal consultation or was unreasonable in attempts to resolve differences.

(l) Discovery Pursuant to Personal Jurisdiction Motion.

(1) While a motion filed under section 2-301 of the Code of Civil Procedure is pending,

a party may obtain discovery only on the issue of the court’s jurisdiction over the person of

the defendant unless: (a) otherwise agreed by the parties; or (b) ordered by the court upon a

showing of good cause by the party seeking the discovery that specific discovery is required

on other issues.

(2) An objecting party’s participation in a hearing regarding discovery, or in discovery as

allowed by this rule, shall not constitute a waiver of that party’s objection to the court’s

jurisdiction over the person of the objecting party.

(m) Filing Materials with the Clerk of the Circuit Court. No discovery may be filed with

the clerk of the circuit court except upon leave of court or as authorized or required by local rule

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or these rules. Service of discovery shall be made in the manner provided for service of

documents in Rule 11.

(n) Claims of Privilege. When information or documents are withheld from disclosure or

discovery on a claim that they are privileged pursuant to a common law or statutory privilege,

any such claim shall be made expressly and shall be supported by a description of the nature of

the documents, communications or things not produced or disclosed and the exact privilege

which is being claimed.

(o) Filing of Discovery Requests to Nonparties. Notwithstanding the foregoing, a copy of

any discovery request under these rules to any nonparty shall be filed with the clerk in accord

with Rule 104(b).

(p) Asserting Privilege or Work Product Following Discovery Disclosure. If information

inadvertently produced in discovery is subject to a claim of privilege or of work-product

protection, the party making the claim may notify any party that received the information of the

claim and the basis for it. After being notified, each receiving party must promptly return,

sequester, or destroy the specified information and any copies; must not use or disclose the

information until the claim is resolved; must take reasonable steps to retrieve the information if

the receiving party disclosed the information to third parties before being notified; and may

promptly present the information to the court under seal for a determination of the claim. The

producing party must also preserve the information until the claim is resolved.

Amended effective September 1, 1974; amended September 29, 1978, effective November 1, 1978;

amended January 5, 1981, effective February 1, 1981; amended May 28, 1982, effective July 1, 1982;

amended June 19, 1989, effective August 1, 1989; amended June 1, 1995, effective January 1, 1996;

amended March 28, 2002, effective July 1, 2002; amended Oct. 24, 2012, effective Jan. 1, 2013;

amended Nov. 28, 2012, eff. Jan. 1, 2013; amended May 29, 2014, eff. July 1, 2014.

Committee Comments

(Revised May 29, 2014)

Paragraph (b)

Paragraph (b), subparagraph (1) was amended to conform with the definition in newly added

paragraph (b), subparagraph (4) and complies with the Federal Rules of Civil Procedure.

Paragraph (b), subparagraph (4) was added to provide a definition of electronically stored

information that comports with the Federal Rule of Civil Procedure 34(a)(1)(a) and is intended to

be flexible and expansive as technology changes.

Paragraph (c)

Subparagraph (3) was added to address the production of materials when benefits do not

outweigh the burden of producing them, especially in the area of electronically stored

information ("ESI").

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The proportionality analysis called for by subparagraph (3) often may indicate that the

following categories of ESI should not be discoverable; (A) "deleted," "slack," "fragmented," or

"unallocated" data on hard drives; (B) random access memory (“RAM”) or other ephemeral data;

(C) on-line access data; (D) data in metadata fields that are frequently updated automatically; (E)

backup data that is substantially duplicative of data that is more accessible elsewhere; (F) legacy

data; (G) information whose retrieval cannot be accomplished without substantial additional

programming or without transforming it into another form before search and retrieval can be

achieved; and (H) other forms of ESI whose preservation or production requires extraordinary

affirmative measures. See Seventh Circuit Electronic Discovery Committee, "Principles

Relating to the Discovery of Electronically Stored Information," Principle 2.04(d). In other

cases, however, the proportionality analysis may support the discovery of some of the types of

ESI on this list. Moreover, this list is not static, since technological changes eventually might

reduce the cost of producing some of these types of ESI. Subparagraph (3) requires a case-by-

case analysis. If any party intends to request the preservation or production of potentially

burdensome categories of ESI, then that intention should be addressed at the initial case

management conference in accordance with Supreme Court Rule 218(a)(10) or as soon thereafter

as practicable.

Paragraph (p)

This provision is referred to as the "clawback" provision and comports with the new Code of

Ethics requirement that if an attorney receives privileged documents, he or she must notify the

other side.

Committee Comments

(October 24, 2012)

Paragraph (m) was amended in 2012 to eliminate the filing of discovery with the clerk of the

circuit court absent leave of court granted in individual cases based on limited circumstances.

The rule is intended to minimize any invasion of privacy that a litigant may have by filing

discovery in a public court file.

Committee Comments

(March 28, 2002)

Paragraph (l)

The words “special appearance,” which formerly appeared in paragraph (1) of Rule 201(l),

were replaced in 2002 with the word “motion” in order to conform to changes in terminology in

section 2–301of the Code of Civil Procedure (735 ILCS 5/2–301 (West 1998)).

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Since the amendment to section 2–301 allows a party to file a combined motion, it is

possible that discovery could proceed on issues other than the court’s jurisdiction over a party’s

person prior to the court ruling on the objection to jurisdiction. While the court may allow

discovery on issues other than the court’s jurisdiction over the person of the defendant prior to a

ruling on the defendant’s objection to jurisdiction, it is expected that in most cases discovery

would not be expanded by the court to other issues until the jurisdictional objection is ruled

upon. It sometimes may be logical for the court to allow specific, requested discovery on other

issues, for example, where a witness is about to die or leave the country, when the party

requesting the additional discovery makes a prima facie showing that the party will suffer

substantial injustice if the requested discovery is not allowed.

Paragraph (2) recognizes that discovery may proceed on other than jurisdictional issues

before the court rules on the objecting party’s motion objecting to jurisdiction. Participation in

discovery by the objecting party does not constitute a waiver by the objecting party’s challenge

to jurisdiction.

Committee Comments

(Revised June 1, 1995)

Paragraph (a)

Paragraph (a) of this rule sets forth the four discovery methods provided for and cautions

against duplication. The committee considered and discarded a provision requiring leave of court

before a party could request by one discovery method information already obtained through

another. The committee concluded that there are circumstances in which it is justifiable to

require answers to the same or related questions by different types of discovery procedures but

felt strongly that the rules should discourage time-wasting repetition; hence the provision that

duplication should be avoided. This language is precatory but in the application of the medical

examination rule, and in the determination of what is unreasonable annoyance under paragraph

(c) of this rule, dealing with prevention of abuse, such a phrase has the beneficial effect of

drawing particular attention to the question whether the information sought has already been

made available to the party seeking it so that further discovery should be curtailed.

Paragraph (b)

Paragraph (b), subparagraph (1), sets forth generally the scope of discovery under the rules.

The language “any matter relevant to the subject matter involved in the pending action” is the

language presently employed in Federal Rule 26. The Federal rule also contains the sentence: “It

is not ground for objection that the testimony will be inadmissible at the trial if the information

sought appears reasonably calculated to lead to the discovery of admissible evidence.” The Joint

Committee Comments that accompanied former Illinois Rule 19–4 indicate that a similar

sentence appearing in the pre-1970 Federal rule was deliberately omitted from the Illinois rule

and suggest that perhaps the language “relating to the merits of the matter in litigation” was

intended to limit discovery to evidence. This language was not construed in this restrictive

fashion, however. (See Monier v. Chamberlain, 31 Ill. 2d 400, 202 N.E.2d 15 (1964), 66 Ill.

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App. 2d 472, 213 N.E.2d 425 (3d Dist. 1966), aff’d, 35 Ill. 2d 351, 221 N.E.2d 410 (1966);

People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 145 N.E.2d 588 (1957); Krupp v. Chicago Transit

Authority, 8 Ill. 2d 37, 132 N.E.2d 532 (1956).) The only other effect the term “merits” could

have would be to prevent discovery of information relating to jurisdiction, a result the committee

thought undesirable. Accordingly, the phrase “relevant to the subject matter” was substituted for

“relating to the merits of the matter in litigation” as more accurately reflecting the case law.

The phrase “identity and location of persons having knowledge of relevant facts,” which

appears in both former Rule 19–4 and Federal Rule 26, was retained. This language has been

interpreted to require that the interrogating party frame his request in terms of some stated fact

rather than simply in the language of the rule, because the use of the broad term “relevant facts”

places on the answering party the undue burden of determining relevancy. See Reske v. Klein, 33

Ill. App. 2d 302, 305-06, 179 N.E.2d 415 (1st Dist. 1962); Fedors v. O’Brien, 39 Ill. App. 2d

407, 412-13, 188 N.E.2d 739 (1st Dist. 1963); Nelson v. Pals, 51 Ill. App. 2d 269, 273-75, 201

N.E.2d 187 (1st Dist. 1964); Grant v. Paluch, 61 Ill. App. 2d 247, 210 N.E.2d 35 (1st Dist.

1965).

The definition of “documents” in subparagraph (b)(1) has been expanded to include “all

retrievable information in computer storage.” This amendment recognizes the increasing

reliability on computer technology and thus obligates a party to produce on paper those relevant

materials which have been stored electronically.

The first sentence of subparagraph (b)(2) is derived from the first sentence of former Rule

19–5(1). The second sentence was new. It constituted a restatement of the law on the subject of

work product as it had developed in the cases decided over the previous decade. See Monier v.

Chamberlain, 35 Ill. 2d 351, 221 N.E.2d 410 (1966), aff’g 66 Ill. App. 2d 472, 213 N.E.2d 425

(3d Dist. 1966); Stimpert v. Abdnour, 24 Ill. 2d 26, 179 N.E.2d 602 (1962); Day v. Illinois

Power Co., 50 Ill. App. 2d 52, 199 N.E.2d 802 (5th Dist. 1964); Oberkircher v. Chicago Transit

Authority, 41 Ill. App. 2d 68, 190 N.E.2d 170 (1st Dist. 3d Div. 1963); Haskell v. Siegmund, 28

Ill. App. 2d 1, 170 N.E.2d 393 (3d Dist. 1960); see also City of Chicago v. Harrison-Halsted

Building Corp., 11 Ill. 2d 431, 435, 143 N.E.2d 40 (1957), and City of Chicago v. Shayne, 46 Ill.

App. 2d 33, 40, 196 N.E.2d 521 (1st Dist. 1964). The final sentence of this subparagraph was

new and is intended to prevent penalizing the diligent and rewarding the slothful.

Discovery of consultants as provided by Rule 201(b)(3) will be proper only in extraordinary

cases. In general terms, the “exceptional circumstances” provision is designed to permit

discovery of consultants only when it is “impracticable” for a party to otherwise obtain facts or

opinions on the same subject. Discovery under the corresponding Federal provision, Rule

26(b)(4)(B) of the Federal Rules of Civil Procedure, has generally been understood as being

appropriate, for example, in cases in which an item of physical evidence is no longer available

because of destructive testing and the adversary’s consultant is the only source of information

about the item, or in cases in which all the experts in a field have been retained by other parties

and it is not possible for the party seeking discovery to obtain his or her own expert.

Paragraph (c)

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Subparagraph (c)(1) covers the substance of former Rule 19–5(2). That rule listed a number

of possible protective orders, ending with the catchall phrase, “or *** any other order which

justice requires to protect party or deponent from annoyance, embarrassment, or oppression.”

Subparagraph (c)(2) substitutes the language “denying, limiting, conditioning, or regulating

discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or

oppression.” The list of possible discovery orders was deleted as unnecessary in view of the

broader language of the new rule. The change in language is by way of clarification and was not

intended to effect any change in the broad discretion to make protective orders that was provided

by former Rule 19–5(2). See Stowers v. Carp, 29 Ill. App. 2d 52, 172 N.E.2d 370 (2d Dist.

1961).

Subparagraph (c)(2), like subparagraph (c)(1), is designed to clarify rather than change the

Illinois practice. The committee was of the opinion that under certain circumstances it might be

desirable for the trial court to direct that discovery proceed under its direct supervision, and that

this practice might be unusual enough to call for special mention in the rule. The language was

taken from section 3104 of the New York Civil Practice Act.

Paragraph (d)

Paragraph (d) of this rule makes it clear that except by order of court discovery procedures

may not be initiated before the defendants have appeared or are required to appear. Former Rule

19–1 provided that depositions could not be taken before the defendants had appeared or were

required to appear, and former Rule 19–11 made the time requirements for taking depositions

applicable to the serving of interrogatories. The former rules, however, left the plaintiff free to

serve notice at any time after the commencement of the action of the taking of a deposition, just

as long as the taking was scheduled after the date on which the defendants were required to

appear, a practice which the bar has found objectionable.

Paragraph (e)

Paragraph (e), as adopted in 1967, provided that unless otherwise ordered “depositions and

other discovery procedures shall be conducted in the sequence in which they are noticed or

otherwise initiated.” The effect of this provision was to give the last defendant served priority in

discovery, since he could determine the date of his appearance. In 1978, this paragraph was

amended to adopt the practice followed in the Federal courts since 1970, permitting all parties to

proceed with discovery simultaneously unless the court orders otherwise. While empirical

studies conducted preliminary to the proposals for amendment of the Federal discovery rules

adopted in 1970 indicate that both defendants and plaintiffs are so often dilatory in beginning

their discovery that a race for priority does not occur very frequently, affording a priority based

on first notice in some cases can result in postponing the other parties’ discovery for a very long

time. (See Advisory Committee Note to Fed. R. Civ. P. 26.) In most cases it appears more

efficient to permit each party to proceed with its discovery, whether by deposition or otherwise,

unless in the interests of justice the establishment of priority seems to be called for. The amended

rule reserves to the court the power to make such an order. In most instances, however, problems

of timing should be worked out between counsel. See paragraph (k).

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Paragraph (f)

Paragraph (f) of this rule is derived from the last sentence of former Rule 19–1. The

language is unchanged except that it is made applicable to all discovery proceedings.

Paragraph (g)

Paragraph (g) of this rule is a cross-reference to Rule 287, which provides that discovery is

not permitted without leave of court in small claims cases, defined in Rule 281 as actions for

money not in excess of $2,500, or for the collection of taxes not in excess of that amount.

Paragraph (h)

Rule 201 was amended in 1974 to add paragraph (h) and to reletter former paragraphs (h)

and (i) as (i) and (j). Paragraph (h) extends to ordinance violation cases the principle applicable

to small claims that discovery procedures under the rules may not be used without leave of court.

Paragraph (i)

Paragraph (i) of this rule makes the provisions of former Rule 19–3, dealing with

stipulations for the taking of depositions, applicable to discovery in general. As originally

adopted this paragraph was (h). It was relettered (i) in 1974, when the present paragraph (h) was

added.

Paragraph (j)

Paragraph (j) of this rule is derived from the last sentence of former Rule 20. The language

is unchanged. As originally adopted, this was paragraph (i). It was relettered (j) when present

paragraph (h) was added in 1974.

Paragraph (k)

Paragraph (k) was added in 1974. Patterned after the practice in the United States District

Courts for the Eastern and Northern Districts of Illinois, it is designed to curtail undue delay in

the administration of justice and to discourage motions of a routine nature.

Paragraph (k) was amended to remedy several problems associated with discovery.

Language has been added to encourage attorneys to try and resolve discovery differences on their

own. Also, committee members cited the problem of junior attorneys, who are not ultimately

responsible for cases, perpetuating discovery disagreements. It was agreed that many discovery

differences could be eliminated if the attorneys responsible for trying the case were involved in

attempts to resolve discovery differences. Reasonable attempts must be made to resolve

discovery disputes prior to bringing a motion for sanctions. Counsel responsible for the trial of a

case are required to have or attempt a personal consultation before a motion with respect to

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discovery is initiated. The last sentence of paragraph (k) has been deleted, as the consequences of

failing to comply with discovery are discussed in Rule 219.

Paragraph (l)

Paragraph (l) was added in 1981 to negate any possible inference from the language of

section 20 of the Civil Practice Act that participation in discovery proceedings after making a

special appearance to contest personal jurisdiction constitutes a general appearance and waives

the jurisdictional objection, so long as the discovery is limited to the issue of personal

jurisdiction.

Paragraph (m)

Paragraph (m) was added in 1989. The new paragraph allows the circuit courts to adopt

local rules to regulate or prohibit the filing of designated discovery materials with the clerk. The

identity of the affected materials should be designated in the local rules, as should any

procedures to compel the filing of materials that would otherwise not be filed under the local

rules.

Paragraphs (n) and (o)

Regarding paragraph (n), any claim of privilege with respect to a document must be stated

specifically pursuant to this rule. Pursuant to paragraph (o), all discovery filed upon a nonparty

shall be filed with the clerk of the court.

Amended Rule 204

Rule 204. Compelling Appearance of Deponent

(a) Action Pending in This State.

(1) Subpoenas. Except as provided in paragraph (c) hereof: (i) the clerk of the court shall

issue subpoenas on request; or (ii) subpoenas may be issued by an attorney admitted to

practice in the State of Illinois who is currently counsel of record in the pending action. The

subpoena may command the person to whom it is directed to produce documents or tangible

things which constitute or contain evidence relating to any of the matters within the scope of

the examination permitted under these rules subject to any limitations imposed under Rule

201(c).

(2) Service of Subpoenas. A deponent shall respond to any lawful subpoena of which the

deponent has actual knowledge, if payment of the fee and mileage has been tendered. Service

of a subpoena by mail may be proved prima facie by a return receipt showing delivery to the

deponent or his authorized agent by certified or registered mail at least seven days before the

date on which appearance is required and an affidavit showing that the mailing was prepaid

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and was addressed to the deponent, restricted delivery, return receipt requested, showing to

whom, date and address of delivery, with a check or money order for the fee and mileage

enclosed.

(3) Notice to Parties, et al. Service of notice of the taking of the deposition of a party or

person who is currently an officer, director, or employee of a party is sufficient to require the

appearance of the deponent and the production of any documents or tangible things listed in

the notice.

(4) Production of Documents in Lieu of Appearance of Deponent. The notice, order or

stipulation to take a deposition may specify that the appearance of the deponent is excused,

and that no deposition will be taken, if copies of specified documents or tangible things are

served on the party or attorney requesting the same by a date certain. That party or attorney

shall serve all requesting parties of record at least three days prior to the scheduled

deposition, with true and complete copies of all documents, and shall make available for

inspection tangible things, or other materials furnished, and shall file a certificate of

compliance with the court. Unless otherwise ordered or agreed, reasonable charges by the

deponent for production in accordance with this procedure shall be paid by the party

requesting the same, and all other parties shall pay reasonable copying and delivery charges

for materials they receive. A copy of any subpoena issued in connection with such a

deposition shall be attached to the notice and immediately filed with the court, not less than

14 days prior to the scheduled deposition. The use of this procedure shall not bar the taking

of any person’s deposition or limit the scope of same.

(b) Action Pending in Another State, Territory, or Country. Any officer or person

authorized by the laws of another State, territory, or country to take any deposition in this State,

with or without a commission, in any action pending in a court of that State, territory, or country

may petition the circuit court in the county in which the deponent resides or is employed or

transacts business in person or is found for a subpoena to compel the appearance of the deponent

or for an order to compel the giving of testimony by the deponent. The court may hear and act

upon the petition with or without notice as the court directs.

(c) Depositions of Physicians. The discovery depositions of nonparty physicians being

deposed in their professional capacity may be taken only with the agreement of the parties and

the subsequent consent of the deponent or under a subpoena issued upon order of court. A party

shall pay a reasonable fee to a physician for the time he or she will spend testifying at any such

deposition. Unless the physician was retained by a party for the purpose of rendering an opinion

at trial, or unless otherwise ordered by the court, the fee shall be paid by the party at whose

instance the deposition is taken.

(d) Noncompliance by Nonparties: Body Attachment.

(1) An order of body attachment upon a nonparty for noncompliance with a discovery order

or subpoena shall not issue without proof of personal service of the rule to show cause or

order of contempt upon the nonparty.

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(2) The service of the rule to show cause or order of contempt upon the nonparty, except

when the rule or order is initiated by the court, shall include a copy of the petition for rule

and the discovery order or subpoena which is the basis for the petition for rule.

(3) The service of the rule to show cause or order of contempt upon the nonparty shall be

made in the same manner as service of summons provided for under sections 2–202, 2–

203(a)(1) and 2–203.1 of the Code of Civil Procedure.

Amended June 23, 1967, and amended October 21, 1969, effective January 1, 1970; amended

September 29, 1978, effective November 1, 1978; amended July 1, 1985, effective August 1, 1985;

amended November 21, 1988, effective January 1, 1989; amended June 19, 1989, effective August 1,

1989; amended June 1, 1995, effective January 1, 1996; amended June 11, 2009, effective

immediately; amended December 16, 2010, effective immediately; amended May 29, 2014, eff. July

1, 2014.

Committee Comments

(Revised June 1, 1995)

Paragraph (a) of this rule was revised effective June 23, 1967, to divide it into three

subparagraphs and add the material contained in subparagraph (a)(2), dealing with service of

subpoenas.

The first sentence of the subparagraph (a)(2) states existing law. (Chicago and Aurora R.R. Co.

v. Dunning (1857), 18 Ill. 494.) The second sentence simplifies proof of actual notice when

service is made by certified or registered mail. It was amended in 1978 to conform its

requirements to presently available postal delivery service. See Committee Comments to Rule

105.

Subparagraphs (a)(1) and (a)(3), without their present subtitles, appeared as paragraph (a) of

Rule 204(a) as adopted effective January 1, 1967. New at that time was the provision now in

subparagraph (a)(1) making an order of the court a prerequisite to the issuance of subpoena for

the discovery deposition of a physician or surgeon. Also new in the 1967 rule was the use of the

term "employee" instead of the former "managing agent" in what is now subparagraph (a)(3).

The phrase "and no subpoena is necessary" which appeared in former Rule 19--8(1) (effective

January 1, 1956), on which Rule 204(a) was based, was placed there to emphasize a change in

practice to which the bar had been accustomed by 1967, and it was deleted in the 1967 revision

as no longer needed.

Subparagraph (4) of paragraph (a) sets forth the procedures to be followed in those instances

where the production of documents or tangible things by an individual may obviate the need for

taking that person's deposition. The rule recognizes that subpoenas must be directed to

individuals, not inanimate objects. Existing law regarding privilege and permissible discovery in

a given case is unaffected by the rule. (See Lewis v. Illinois Central R.R. Co., 234 Ill. App. 3d

669 (5th Dist. 1992).) The rule requires disclosure to all parties with prompt and complete

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production of all materials received, regardless of whether materials in addition to those

specified are furnished by the deponent.

Paragraph (b) was not affected by the June 23, 1967, amendment. It was derived from former

Rule 19--8(2) as it stood before 1967.

In 1985 paragraph (a) was amended and paragraph (c) was added to regulate the practice of

compelling physicians and surgeons to appear to be deposed in their professional capacity and to

set guidelines concerning professional fees which may, by agreement, be paid to physicians and

surgeons for attending such depositions. Traditionally, expert witnesses are in the same position

as other witnesses with respect to their fees. (In re Estate of James (1956), 10 Ill. App. 2d 232.)

Physicians and other experts subpoenaed to testify may not refuse to do so on the ground that

they are entitled to be paid some additional fee on the basis of being an expert. (Dixon v. People

(1897), 168 Ill. 179.) Expert witnesses, like other witnesses, normally are entitled only to $20 per

day and 20 cents per mile of necessary travel. (Falkenthal v. Public Building Com. (1983), 111

Ill. App. 3d 703.) As a practical matter, however, physicians and surgeons usually do request a

professional fee, in addition to the statutory witness fee, to reimburse them for the time they

spend testifying at depositions, and the party at whose instance the physician or surgeon is

subpoenaed is normally loathe to refuse. This rule is intended to regulate this practice. A party

may agree to pay a reasonable professional fee to a physician or surgeon for the time he or she

will spend testifying at any deposition. The fee should be paid only after the doctor has testified,

and it should not exceed an amount which reasonably reimburses the doctor for the time he or

she actually spent testifying at deposition. Unless the doctor was retained for the purpose of

rendering an expert opinion at trial, or unless otherwise ordered by the court, the party at whose

instance the deposition is being taken would be responsible for paying the professional fee, as

well as other fees and expenses provided for in Rule 208.

Rule 204(c) implies that the trial court will exercise discretion in ordering the issuance of a

subpoena upon a physician or surgeon and will refuse to do so unless there is some preliminary

showing of good cause, regardless of whether there has been an objection by opposing counsel.

At a minimum the moving party must be able to show that he has received the medical records

available in the case and nevertheless has good reason to believe that a deposition is necessary. If

appropriate, the court may require that such a showing of good cause be accomplished by an

affidavit accompanying the motion.

Paragraph (c) was amended in 1989 to provide that a party "shall pay," rather than "may agree to

pay," a reasonable fee to a physician or surgeon for the time the physician or surgeon will spend

testifying at any such deposition. This change will clarify the responsibility of parties to not

intrude on the time of physicians and surgeons without seeing to it that the physicians or

surgeons receive reasonable compensation for the time they spend undergoing questioning on

deposition.

The reference in paragraph (c) to "surgeons" has been stricken because it is redundant.

Moreover, paragraph (c) is made applicable only to "nonparty" physicians. The protection

afforded a physician by paragraph (c), including the payment of a fee for time spent, has no

application to a physician who is a party to the suit. Such protection should likewise be

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unavailable to nonparty physicians who are closely associated with a party, such as physicians

who are stockholders in or officers of a professional corporation named as a defendant, or a

physician who is a respondent in discovery.

Amended Rule 214

Rule 214. Discovery of Documents, Objects, and Tangible Things--Inspection of Real Estate

(a) Any party may by written request direct any other party to produce for inspection, copying,

reproduction photographing, testing or sampling specified documents, including electronically

stored information as defined under Rule 201(b)(4), objects or tangible things, or to permit

access to real estate for the purpose of making surface or subsurface inspections or surveys or

photographs, or tests or taking samples, or to disclose information calculated to lead to the

discovery of the whereabouts of any of these items, whenever the nature, contents, or condition

of such documents, objects, tangible things, or real estate is relevant to the subject matter of the

action. The request shall specify a reasonable time, which shall not be less than 28 days except

by agreement or by order of court, and the place and manner of making the inspection and

performing the related acts.

(b) With regard to electronically stored information as defined in Rule 201(b)(4), if a request

does not specify a form for producing electronically stored information, a party must produce it

in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(c) One copy of the request shall be served on all other parties entitled to notice. A party served

with the written request shall (1) produce the requested documents identify all materials in the

party's possession responsive to the request and copy or provide reasonable opportunity for

copying or inspections. Production of documents shall be as they are kept in the usual course of

business or organized and labeled to correspond with the categories in the request, and all

retrievable information in computer storage in printed form or (2) serve upon the party so

requesting written objections on the ground that the request is improper in whole or in part. If

written objections to a part of the request are made, the remainder of the request shall be

complied with. A party may object to a request on the basis that the burden or expense of

producing the requested materials would be disproportionate to the likely benefit, in light of the

factors set out in Rule 201(c)(3). Any objection to the request or the refusal to respond shall be

heard by the court upon prompt notice and motion of the party submitting the request. If the

party claims that the item is not in his or her possession or control or that he or she does not have

information calculated to lead to the discovery of its whereabouts, the party may be ordered to

submit to examination in open court or by deposition regarding such claim. The party producing

party documents shall furnish an affidavit stating whether the production is complete in

accordance with the request. Copies of identifications, objections and affidavits of completeness

shall be served on all parties entitled to notice.

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(d) A party has a duty to seasonably supplement any prior response to the extent of documents,

objects or tangible things which subsequently come into that party's possession or control or

become known to that party.

(e) This rule does not preclude an independent action against a person not a party for production

of documents and things and permission to enter upon real estate.

Amended June 28, 1974, effective September 1, 1974; amended October 1, 1976, effective November

15, 1976; amended June 1, 1995, effective January 1, 1996; amended May 29, 2014, eff. July 1, 2014.

Committee Comments

(Revised May 29, 2014)

Paragraphs (a) and (b)

The Committee reorganized Rule 214 as well as creating new paragraph (b), which is

modeled after Federal Rule of Civil Procedure 34(b).

Paragraph (c)

The Committee's intent was to assist in the area of electronically stored information by

allowing for identification of materials.

Committee Comments

(Revised June 1, 1995)

As originally promulgated Rule 214 was patterned after former Rule 17. It provided for

discovery of documents and tangible things, and for entry upon real estate, in the custody or

control of any "party or other person," by moving the court for an order compelling such

discovery. In 1974, the rule was amended to eliminate the requirement of a court order. Under

the amended rule a party seeking production of documents or tangible things or entry on real

estate in the custody or control of any other party may serve the party with a request for the

production of the documents or things, or for permission to enter upon the real estate. The party

receiving the request must comply with it or serve objections. If objections are served, the party

seeking the discovery may serve a notice of hearing on the objections, or in case of failure to

respond to the request may move the court for an order under Rule 219(a).

The request procedure may be utilized only when discovery is sought from a party to the action.

Discovery of documents and tangible things in the custody or control of a person not a party may

be obtained by serving him with a subpoena duces tecum for the taking of his deposition. The

last paragraph of the rule was added to indicate that the rule is not preemptive of an independent

action for discovery in the nature of a bill in equity. Such an action can be employed, then, in the

occasional case in which a party seeks to inspect real estate that is in the custody or control of a

person not a party to the main action.

- 20 -

The first paragraph has been revised to require a party producing documents to produce those

documents organized in the order in which they are kept in the usual course of business, or

organized and labeled to correspond with the categories in the request. This revision requires the

party producing documents and that party's attorney to make a good-faith review of documents

produced to ensure full compliance with the request, but not to burden the requesting party with

nonresponsive documents.

The failure to organize the requested documents as required by this rule, or the production of

nonresponsive documents intermingled among the requested documents, constitutes a discovery

abuse subject to sanctions under Rule 219.

The first paragraph has also been amended to require a party to include in that party's production

response all responsive information in computer storage in printed form. This change is intended

to prevent parties producing information from computer storage on storage disks or in any other

manner which tends to frustrate the party requesting discovery from being able to access the

information produced.

Rule 201(b) has also been amended to include in the definition of "documents" all retrievable

information in computer storage, so that there can be no question but that a producing party must

search its computer storage when responding to a request to produce documents pursuant to this

rule.

The last sentence of the first paragraph has also been revised to make mandatory the requirement

that the party producing documents furnish an affidavit stating whether the production is

complete in accordance with the request. Previously, the party producing documents was not

required to furnish such an affidavit unless requested to do so.

The second paragraph is new. This paragraph parallels the similar requirement in Rule 213 that a

party must seasonably supplement any prior response to the extent that documents, objects or

tangible things subsequently come into that party's possession or control or become known to

that party. A party who has knowledge of documents, objects or tangible things responsive to a

previously served request must disclose that information to the requesting party whether or not

the actual documents, objects or tangible things are in the possession of the responding party. To

the extent that responsive documents, objects or tangible things are not in the responding party's

possession, the compliance affidavit requires the producing party to identify the location and

nature of such responsive documents, objects or tangible things. It is the intent of this rule that a

party must produce all responsive documents, objects or tangible things in its possession, and

fully disclose the party's knowledge of the existence and location of responsive documents,

objects or tangible things not in its possession so as to enable the requesting party to obtain the

responsive documents, objects or tangible things from the custodian.

Amended Rule 216

Rule 216. Admission of Fact or of Genuineness of Documents

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(a) Request for Admission of Fact. A party may serve on any other party a written request

for the admission by the latter of the truth of any specified relevant fact set forth in the request. A

copy of the request for admission shall be served on all parties entitled to notice.

(b) Request for Admission of Genuineness of Document. A party may serve on any other

party a written request for admission of the genuineness of any relevant documents described in

the request. Copies of the documents shall be served with the request unless copies have already

been furnished.

(c) Admission in the Absence of Denial. Each of the matters of fact and the genuineness of

each document of which admission is requested is admitted unless, within 28 days after service

thereof, the party to whom the request is directed serves upon the party requesting the admission

either (1) a sworn statement denying specifically the matters of which admission is requested or

setting forth in detail the reasons why the party cannot truthfully admit or deny those matters or

(2) written objections on the ground that some or all of the requested admissions are privileged

or irrelevant or that the request is otherwise improper in whole or in part. If written objections to

a part of the request are made, the remainder of the request shall be answered within the period

designated in the request. A denial shall fairly meet the substance of the requested admission. If

good faith requires that a party deny only a part, or requires qualification, of a matter of which an

admission is requested, the party shall specify so much of it as is true and deny only the

remainder. Any objection to a request or to an answer shall be heard by the court upon prompt

notice and motion of the party making the request. The response to the request, sworn statement

of denial, or written objection, shall be served on all parties entitled to notice.

(d) Public Records. If any public records are to be used as evidence, the party intending to

use them may prepare a copy of them insofar as they are to be used, and may seasonably present

the copy to the adverse party by notice in writing, and the copy shall thereupon be admissible in

evidence as admitted facts in the case if otherwise admissible, except insofar as its inaccuracy is

pointed out under oath by the adverse party in an affidavit filed and served within 28 days after

service of the notice.

(e) Effect of Admission. Any admission made by a party pursuant to request under this rule

is for the purpose of the pending action and any action commenced pursuant to the authority of

section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217) only. It does not constitute

an admission by him for any other purpose and may not be used against him in any other

proceeding.

(f) Number of Requests. The maximum number of requests for admission a party may serve

on another party is 30, unless a higher number is agreed to by the parties or ordered by the court

for good cause shown. If a request has subparts, each subpart counts as a separate request.

(g) Special Requirements. A party must: (1) prepare a separate document which contains

only the requests and the documents required for genuine document requests; (2) serve this

document separate from other documents; and (3) put the following warning in a prominent

place on the first page in 12-point or larger boldface type: “WARNING: If you fail to serve the

response required by Rule 216 within 28 days after you are served with this document, all

- 22 -

the facts set forth in the requests will be deemed true and all the documents described in

the requests will be deemed genuine.”

Amended July 1, 1985, effective August 1, 1985; amended May 30, 2008, effective immediately;

amended October 1, 2010, effective January 1, 2011; amended Jan. 4, 2013, eff. immediately;

amended Mar. 15, 2013, eff. May 1, 2013; amended May 29, 2014, eff. July 1, 2014.

Committee Comment

(October 1, 2010)

Paragraphs (f) and (g) are designed to address certain problems with Rule 216, including the

service of hundreds of requests for admission. For the vast majority of cases, the limitation to 30

requests now found in paragraph (f) will eliminate this abusive practice. Other noted problems

include the bundling of discovery requests to form a single document into which the requests to

admit were intermingled. This practice worked to the disadvantage of certain litigants,

particularly pro se litigants, who do not understand that failure to respond within the time

allowed results in the requests being deemed admitted. Paragraph (g) provides for requests to be

contained in a separate paper containing a boldface warning regarding the effect of the failure to

respond within 28 days. Consistent with Vision Point of Sale Inc. v. Haas, 226 Ill.2d 334 (2007),

trial courts are vested with discretion with respect to requests for admission.

Committee Comments

(Revised July 1, 1985)

This rule is derived from former Rule 18. Despite the usefulness of requests for admission of

facts in narrowing issues, such requests seem to have been used very little in Illinois practice.

The committee was of the opinion that perhaps this has resulted in part from the fact that they are

provided for in the text of a rule that reads as if it relates primarily to admission of the

genuineness of documents. Accordingly, it has rewritten the rule to place the authorization for

request for admission of facts in a separate paragraph. No change in the substance of former Rule

18 was intended.

Subparagraph (e) was amended in 1985 to resolve an apparent conflict about whether

admissions are carried over into subsequent cases between the same parties, involving the same

subject matter, as are the fruits of other discovery activities (see Rule 212(d)). Relief from prior

admissions is available to the same extent in the subsequent action as in the case which was

dismissed or remanded.

Amended Rule 218

Rule 218. Pretrial Procedure.

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(a) Initial Case Management Conference. Except as provided by local circuit court rule,

which on petition of the chief judge of the circuit has been approved by the Supreme Court, the

court shall hold a case management conference within 35 days after the parties are at issue and in

no event more than 182 days following the filing of the complaint. At the conference counsel

familiar with the case and authorized to act shall appear and the following shall be considered:

(1) the nature, issues, and complexity of the case;

(2) the simplification of the issues;

(3) amendments to the pleadings;

(4) the possibility of obtaining admissions of fact and of documents which will avoid

unnecessary proof;

(5) limitations on discovery including:

(i) the number and duration of depositions which may be taken;

(ii) the area of expertise and the number of expert witnesses who may be called; and

(iii) deadlines for the disclosure of witnesses and the completion of written discovery and

depositions;

(6) the possibility of settlement and scheduling of a settlement conference;

(7) the advisability of alternative dispute resolution;

(8) the date on which the case should be ready for trial;

(9) the advisability of holding subsequent case management conferences; and

(10) any other matters which may aid in the disposition of the action including but not

limited to issues involving electronically stored information and preservation.

(b) Subsequent Case Management Conferences. At the initial and any subsequent case

management conference, the court shall set a date for a subsequent management conference or a

trial date.

(c) Order. At the case management conference, the court shall make an order which recites

any action taken by the court, the agreements made by the parties as to any of the matters

considered, and which specifies as the issues for trial those not disposed of at the conference.

The order controls the subsequent course of the action unless modified. All dates set for the

disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be

chosen to ensure that discovery will be completed not later than 60 days before the date on which

the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the

- 24 -

parties. This rule is to be liberally construed to do substantial justice between and among the

parties.

(d) Calendar. The court shall establish a pretrial calendar on which actions shall be placed

for consideration, as above provided, either by the court on its own motion or on the motion of

any party.

Amended June 1, 1995, effective January 1, 1996; amended May 31, 2002, effective July 1, 2002;

amended October 4, 2002, effective immediately; amended May 29, 2014, eff. July 1, 2014.

Committee Comment

(Revised May 29, 2014)

Paragraph (a)

Paragraph (a), subparagraph (10) is intended to encourage parties to use the case

management conference to resolve issues concerning electronically stored information early in

the case.

Committee Comment

(October 4, 2002)

The rule is amended to clarify that case management orders will set dates for disclosure of

rebuttal witnesses, if any, and that parties may agree to waive or modify the 60-day rule without

altering the trial date.

Committee Comment

(May 31, 2002)

This rule is amended to conform to the changes in terminology made in Supreme Court Rule

213.

Committee Comments

(Revised June 1, 1995)

This rule is former Rule 22.

Rule 218 has been substantially modified to implement the objective of early and ongoing

differential case management. The former rule contemplated a single pretrial conference which

could be held at the discretion of the court. The new rule mandates an initial case management

conference which must be held within 35 days after the parties are at issue or in any event not

- 25 -

later than 182 days after the complaint is filed. The principal goal of the initial case management

conference is to tailor the future course of the litigation to reflect the singular characteristics of

the case.

The new rule recognizes that each case is a composite of variable factors including the nature,

number and complexity of the substantive and procedural issues which are involved, the number

of parties and potential witnesses as well as the type and economic value of the relief sought.

Less complex cases with limited damages and fewer parties require less discovery and involve

less time to prepare than do cases with multiple complex issues involving numerous parties and

damages or other remedies of extraordinary economic consequence. By focusing upon each case

within six months after it is filed, the court and the parties are able to formulate a case

management plan which avoids both the potential abuses and injustices that are inherent in the

previous “cookie cutter” approach.

At the initial case management conference the court and counsel will consider the specific

matters which are enumerated in subparagraphs (a)(1) through (a)(10). Chief among these are

those which require early recognition of the complexity of the claim in order to regulate the type

of discovery which will follow and the amount of time which the court and counsel believe will

be required before the case can be tried. In less complex cases, subparagraphs (a)(5)(i) and

(a)(5)(ii) contemplate limitations on the number and duration of depositions and restriction upon

the type and number of opinion witnesses which each side may employ. This type of

management eliminates discovery abuse in smaller cases without inflexibly inhibiting the type of

preparation which is required in more complex litigation.

The new rule also recognizes a number of the uncertainties and problems which existed under

the prior scheduling provision of former Rule 220. It attempts to eliminate those difficulties by

requiring the court, at the initial management conference, to set deadlines for the disclosure of

opinion witnesses as well as for the completion of written discovery and depositions.

Amendments to Supreme Court Rules 213 and 214 impose a continuing obligation to supplement

discovery responses, including the identification of witnesses who will testify at trial and the

subject matter of their testimony. Consequently, the trial of cases should not be delayed by the

late identification of witnesses, including opinion witnesses, or by virtue of surprise because the

nature of their testimony and opinions is unknown. In this regard, paragraph (c) provides that

deadlines established by the court must take into account the completion of discovery not later

than 60 days before it is anticipated that trial will commence. For example, opinion witnesses

should be disclosed, and their opinions set forth pursuant to interrogatory answer, at such time or

times as will permit their depositions to be taken more than 60 days before trial.

Paragraph (a) also enumerates the other matters which the court and counsel are to consider,

including the elimination of nonmeritorious issues and defenses and the potential for settlement

or alternative dispute resolution. Except in instances where the case is sufficiently simple to

permit trial to proceed without further management, the rule contemplates that subsequent case

management conferences will be held. The Committee believes that useless or unnecessary

depositions should not take place during the discovery process and that no deposition should be

longer than three hours unless good cause is shown. Circuits which adopt a local circuit court

- 26 -

rule should accomplish the purpose and goals of this proposal. Any local circuit court rule first

must be approved by the Supreme Court.

Paragraph (b) reflects the belief that case management is an ongoing process in which the

court and counsel will periodically review the matters specified in subparagraphs (a)(1) through

(a)(10). As additional parties are added, or amendments are made to the complaint or defenses, it

may be necessary to increase or further limit the type of discovery which is required.

Consequently, paragraph (c) provides that at the conclusion of each case management

conference, the court shall enter an order which reflects the action which was taken. That order

will control the course of litigation unless and until it is modified by a subsequent case

management order. A separate road map will chart the course of each case from a point within

six months from the date on which the complaint is filed until it is tried. By regulating discovery

on a case-specific basis, the trial court will keep control of the litigation and thereby prevent the

potential for discovery abuse and delay which might otherwise result.

Paragraph (c) controls the subsequent course of action of the litigation unless modified and

should ensure that the disclosure of opinion witnesses and discovery will be completed no later

than 60 days before the date on which the matter is set for trial.

Rule 219, Revised Committee Comments

Rule 219. Consequences of Refusal to Comply with Rules or Order Relating to Discovery

or Pretrial Conferences

(a) Refusal to Answer or Comply with Request for Production. If a party or other deponent

refuses to answer any question propounded upon oral examination, the examination shall be

completed on other matters or adjourned, as the proponent of the question may prefer.

Thereafter, on notice to all persons affected thereby, the proponent of the question may move the

court for an order compelling an answer. If a party or other deponent refuses to answer any

written question upon the taking of his or her deposition or if a party fails to answer any

interrogatory served upon him or her, or to comply with a request for the production of

documents or tangible things or inspection of real property, the proponent of the question or

interrogatory or the party serving the request may on like notice move for an order compelling an

answer or compliance with the request. If the court finds that the refusal or failure was without

substantial justification, the court shall require the offending party or deponent, or the party

whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved

party the amount of the reasonable expenses incurred in obtaining the order, including reasonable

attorney's fees. If the motion is denied and the court finds that the motion was made without

substantial justification, the court shall require the moving party to pay to the refusing party the

amount of the reasonable expenses incurred in opposing the motion, including reasonable

attorney's fees.

(b) Expenses on Refusal to Admit. If a party, after being served with a request to admit the

genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof,

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and if the party requesting the admissions thereafter proves the genuineness of the document or

the truth of the matter of fact, the requesting party may apply to the court for an order requiring

the other party to pay the requesting party the reasonable expenses incurred in making the proof,

including reasonable attorney's fees. Unless the court finds that there were good reasons for the

denial or that the admissions sought were of no substantial importance, the order shall be made.

(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in

collusion with a party, unreasonably fails to comply with any provision of part E of article II of

the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to

comply with any order entered under these rules, the court, on motion, may enter, in addition to

remedies elsewhere specifically provided, such orders as are just, including, among others, the

following:

(i) That further proceedings be stayed until the order or rule is complied with;

(ii) That the offending party be debarred from filing any other pleading relating to any issue to

which the refusal or failure relates;

(iii) That the offending party be debarred from maintaining any particular claim, counterclaim,

third-party complaint, or defense relating to that issue;

(iv) That a witness be barred from testifying concerning that issue;

(v) That, as to claims or defenses asserted in any pleading to which that issue is material, a

judgment by default be entered against the offending party or that the offending party's action be

dismissed with or without prejudice;

(vi) That any portion of the offending party's pleadings relating to that issue be stricken and, if

thereby made appropriate, judgment be entered as to that issue; or

(vii) That in cases where a money judgment is entered against a party subject to sanctions under

this subparagraph, order the offending party to pay interest at the rate provided by law for

judgments for any period of pretrial delay attributable to the offending party's conduct.

In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may

impose upon the offending party or his or her attorney, or both, an appropriate sanction, which

may include an order to pay to the other party or parties the amount of reasonable expenses

incurred as a result of the misconduct, including a reasonable attorney fee, and when the

misconduct is wilful, a monetary penalty. When appropriate, the court may, by contempt

proceedings, compel obedience by any party or person to any subpoena issued or order entered

under these rules. Notwithstanding the entry of a judgment or an order of dismissal, whether

voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or

on the motion of any party, any order imposing monetary sanctions, including such orders as

may be entered on motions which were pending hereunder prior to the filing of a notice or

motion seeking a judgment or order of dismissal.

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Where a sanction is imposed under this paragraph (c), the judge shall set forth with specificity

the reasons and basis of any sanction so imposed either in the judgment order itself or in a

separate written order.

(d) Abuse of Discovery Procedures. The court may order that information obtained through

abuse of discovery procedures be suppressed. If a party wilfully obtains or attempts to obtain

information by an improper discovery method, wilfully obtains or attempts to obtain information

to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter

any order provided for in paragraph (c) of this rule.

(e) Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid

compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a

lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony,

the court shall consider discovery undertaken (or the absence of same), any misconduct, and

orders entered in prior litigation involving a party. The court may, in addition to the assessment

of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties

reasonable expenses incurred in defending the action including but not limited to discovery

expenses, expert witness fees, reproduction costs, travel expenses, postage, and phone charges.

Amended effective September 1, 1974; amended May 28, 1982, effective July 1,1982; amended July

1, 1985, effective August 1, 1985; amended June 1, 1995, effective January 1, 1996; amended March

28, 2002, effective July 1, 2002.

Committee Comment

(Revised May 29, 2014)

The Committee believes that the rule is sufficient to cover sanction issues as they relate to

electronic discovery. The rulings in Shimanovsky v. GMC, 181 Ill. 2d 112 (1998) and Adams v.

Bath and Body Works, 358 Ill.App.3d 387 (1st Dist. 2005) contain detailed discussion of

sanctions for discovery violations for the loss or destruction of relevant evidence and for the

separate and distinct claim for the tort of negligent spoliation of evidence.

Administrative Order

In re Discovery Rules

The order entered March 28, 2002, amending various rules and effective July 1, 2002, shall

apply to all cases filed after such effective date as well as all cases pending on such effective

date, provided that any discovery order entered in any such case prior to July 1, 2002, shall

remain in effect unless and until amended by the trial court.

Order entered November 27, 2002, effective immediately.

- 29 -

Committee Comment

(March 28, 2002)

This rule is amended to conform to the changes in terminology made in Supreme Court Rule

213.

Committee Comments

(Revised June 1, 1995)

Paragraphs (a) and (b)

Paragraphs (a) and (b) of this rule were derived from former Rules 19--12(1) and (2). In 1974,

Rule 214 was amended to provide for a request procedure in the production of documents and

tangible things and inspection of real estate, eliminating the requirement that the party seeking

such discovery obtain an order of court. Paragraph (a) of Rule 219 was amended at the same time

to extend its coverage to cases in which a party refuses to comply with a request under amended

Rule 214.

Paragraph (c)

Paragraph (c) is derived from former Rule 19--12(3). The paragraph has been changed to permit

the court to render a default judgment against either party. This is consistent with Federal Rule

37(b)(iii), and makes effective the remedy against a balky plaintiff. The remedy was previously

limited to dismissal (although it is to be noted that in former Rule 19--12(3) nonsuit and

dismissal were both mentioned), and the plaintiff could presumably bring his action again, while

in case of the defendant the answer could be stricken and the case decided on the complaint

alone. The sanctions imposed must relate to the issue to which the misconduct relates and may

not extend to other issues in the case.

Subparagraph (c) was amended in 1985 to make it clear that the sanctions provided for therein

applied to violations of new Rules 220 and 222, as well as any discovery rules that may be

enacted in the future. Subparagraph (c) was further amended in 1985 to recognize the trial court's

continuing jurisdiction to enforce any monetary sanctions imposed thereunder for any abuse of

discovery in any case in which an order prescribing such sanctions was entered before any

judgment or order of dismissal, whether voluntary or involuntary (see North Park Bus Service,

Inc. v. Pastor (1976), 39 Ill. App. 3d 406), or to order such monetary sanctions, and enforce

them, in any case in which a motion for sanctions was pending before the trial court prior to the

filing of a notice or motion seeking a judgment or order of dismissal, whether voluntary or

involuntary. This change in no way compromises a plaintiff's right to voluntarily dismiss his

action under section 2--1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-

-1009). It simply makes it clear that a party may not avoid the consequences of an abuse of the

discovery process by filing a notice of voluntary dismissal.

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Paragraph (c) has been expanded to provide: (1) for the imposition of prejudgment interest in

those situations where a party who has failed to comply with discovery has delayed the entering

of a money judgment; (2) the imposition of a monetary penalty against a party or that party's

attorney for a wilful violation of the discovery rules; and (3) for other appropriate sanctions

against a party or that party's attorney including the payment of reasonable expenses incurred as

a result of the misconduct together with a reasonable attorney fee.

Paragraph (c) is expanded first by adding subparagraph (vii), which specifically allows the trial

court to include in a judgment, interest for any period of pretrial delay attributable to discovery

abuses by the party against whom the money judgment is entered.

Paragraph (c) has also been expanded to provide for the imposition of a monetary penalty against

a party or that party's attorney as a result of a wilful violation of the discovery rules. See Safeway

Insurance Co. v. Graham, 188 Ill. App. 3d 608 (1st Dist. 1989). The decision as to whom such a

penalty may be payable is left to the discretion of the trial court based on the discovery violation

involved and the consequences of that violation. This language is intended to put to rest any

doubt that a trial court has the authority to impose a monetary penalty against a party or that

party's attorney. See Transamerica Insurance Group v. Lee, 164 Ill. App. 3d 945 (1st Dist. 1988)

(McMorrow, J., dissenting).

The last full paragraph of paragraph (c) has also been amended to give greater discretion to the

trial court to fashion an appropriate sanction against a party who has violated the discovery rules

or orders. The amended language parallels that used in Rule 137. This paragraph has also been

amended to require a judge who imposes a sanction under paragraph (c) to specify the reasons

and basis for the sanction imposed either in the judgment order itself or in a separate written

order. This language is the same as that now contained in Rule 137.

Paragraph (d)

Paragraph (d) is new. It extends the sanctions provided for in the new rule to general abuse of the

discovery rules.

Paragraph (e)

Paragraph (e) addresses the use of voluntary dismissals to avoid compliance with discovery rules

or deadlines, or to avoid the consequences of discovery failures, or orders barring witnesses or

evidence. This paragraph does not change existing law regarding the right of a party to seek or

obtain a voluntary dismissal. However, this paragraph does clearly dictate that when a case is

refiled, the court shall consider the prior litigation in determining what discovery will be

permitted, and what witnesses and evidence may be barred. The consequences of noncompliance

with discovery deadlines, rules or orders cannot be eliminated by taking a voluntary dismissal.

Paragraph (e) further authorizes the court to require the party taking the dismissal to pay the out-

of-pocket expenses actually incurred by the adverse party or parties. This rule reverses the

holdings in In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989, 259 Ill. App. 3d 231,

631 N.E.2d 1302 (1st Dist. 1994), and Galowich v. Beech Aircraft Corp., 209 Ill. App. 3d 128,

- 31 -

568 N.E.2d 46 (1st Dist. 1991). Paragraph (e) does not provide for the payment of attorney fees

when an action is voluntarily dismissed.

Amended Rule 243

243. Written Juror Questions Directed to Witnesses

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court

written questions directed to witnesses.

(b) Procedure. Following the conclusion of questioning by counsel, the court shall

determine whether the jury will be afforded the opportunity to question the witness. Regarding

each witness for whom the court determines questions by jurors are appropriate, the jury shall be

asked to submit any question they have for the witness in writing. No discussion regarding the

questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a

single question nor shall jurors be required to submit questions. The bailiff will then collect any

questions and present the questions to the judge. Questions will be marked as exhibits and made

a part of the record.

(c) Objections. Out of the presence of the jury, the judge will read the question to all

counsel, allow counsel to see the written question, and give counsel an opportunity to object to

the question. If any objections are made, the court will rule upon them at that time and the

question will be either admitted, modified, or excluded accordingly. The limitations on direct

examination set forth in Rule 213(g) apply to juror-submitted questions.

(d) Questioning of the Witness. The court shall instruct the witness to answer only the

question presented, and not exceed the scope of the question. The court will ask each question;

the court will then provide all counsel with an opportunity to ask follow-up questions limited to

the scope of the new testimony.

(e) Admonishment to Jurors. At times before or during the trial that it deems appropriate,

the court shall advise the jurors that they shall not concern themselves with the reason for the

exclusion or modification of any question submitted and that such measures are taken by the

court in accordance with the rules of evidence that govern the case.

Adopted April 3, 2012, eff. July 1, 2012; amended May 29, 2014, eff. July 1, 2014.

Committee Comments (April 3, 2012)

This rule gives the trial judge discretion in civil cases to permit jurors to submit written

questions to be directed to witnesses―a procedure which has been used in other jurisdictions to

- 32 -

improve juror comprehension, attention to the proceedings, and satisfaction with jury service.

The trial judge may discuss with the parties’ attorneys whether the procedure will be helpful in

the case, but the decision whether to use the procedure rests entirely with the trial judge. The rule

specifies some of the procedures the trial judge must follow, but it leaves other details to the trial

judge’s discretion.

Amended Rule 306

Rule 306. Interlocutory Appeals by Permission.

(a) Orders Appealable by Petition. A party may petition for leave to appeal to the

Appellate Court from the following orders of the trial court:

(1) from an order of the circuit court granting a new trial;

(2) from an order of the circuit court allowing or denying a motion to dismiss on the grounds

of forum non conveniens, or from an order of the circuit court allowing or denying a motion

to transfer a case to another county within this State on such grounds;

(3) from an order of the circuit court denying a motion to dismiss on the grounds that the

defendant has done nothing which would subject defendant to the jurisdiction of the Illinois

courts;

(4) from an order of the circuit court granting or denying a motion for a transfer of venue

based on the assertion that the defendant is not a resident of the county in which the action

was commenced, and no other legitimate basis for venue in that county has been offered by

the plaintiff;

(5) from interlocutory orders affecting the care and custody of unemancipated minors, if the

appeal of such orders is not otherwise specifically provided for elsewhere in these rules;

(6) from an order of the circuit court which remands the proceeding for a hearing de novo

before an administrative agency; or

(7) from an order of the circuit court granting a motion to disqualify the attorney for any

party;

(8) from an order of the circuit court denying or granting certification of a class action under

section 2–802 of the Code of Civil Procedure (735 ILCS 5/2–802); or

(9) from an order of the circuit court denying a motion to dispose under the Citizen

Participation Act (735 ILCS 110/1 et seq.)

- 33 -

If the petition for leave to appeal an order granting a new trial is granted, all rulings of the trial

court on the posttrial motions are before the reviewing court without the necessity of a cross-

petition.

(b) Procedure for Petitions Under Subparagraph (a)(5).

(1) Petition; Service; Record. Unless another form is ordered by the Appellate Court, review

of an order affecting the care and custody of an unemancipated minor as authorized in

paragraph (a)(5) shall be by petition filed in the Appellate Court. The petition shall be in

writing and shall state the relief requested and the grounds for the relief requested. An

appropriate supporting record shall accompany the petition, which shall include the order

appealed from or the proposed order, and any supporting documents or matters of record

necessary to the petition. The supporting record must be authenticated by the certificate of

the clerk of the trial court or by the affidavit of the attorney or party filing it. The petition,

supporting record and the petitioner’s legal memorandum, if any, shall be filed in the

Appellate Court within 14 days of the entry or denial of the order from which review is being

sought, with proof of personal service or facsimile service as provided in Rule 11. A copy of

the petition for leave to appeal must also be served upon the trial court judge who entered the

order from which leave to appeal is sought.

(2) Legal Memoranda. The petitioner may file a memorandum, not exceeding 15 typewritten

pages, with the petition. The respondent or any other party or person entitled to be heard in

the case may file, with proof of personal service or facsimile service as provided in Rule 11,

a responding memorandum within five business days following service of the petition and

petitioner’s memorandum. A memorandum by the respondent or other party may not exceed

15 typewritten pages.

(3) Replies; Extensions of Time. Except by order of court, no replies will be allowed and no

extension of time will be allowed.

(4) Variations by Order of Court. The Appellate Court may, if it deems it appropriate, order a

different schedule, or order that no memoranda be filed, or order that other materials need not

be filed.

(5) Procedure if Leave to Appeal Is Granted. If leave to appeal is granted, the circuit court

and the opposing parties shall be served with copies of the order granting leave to appeal. All

proceedings shall then be subject to the expedited procedures set forth in Rule 311(a). A

party may allow his or her petition or answer to stand as his or her brief or may elect to file a

new brief. In order to allow a petition or answer to stand as a brief, the party must notify the

other parties and the Clerk of the Appellate Court on or before the due date of the brief.

(c) Procedure for All Other Petitions Under This Rule.

(1) Petition. The petition shall contain a statement of the facts of the case, supported by

reference to the supporting record, and of the grounds for the appeal. An original and three

copies of the petition (or original and five copies in workers’ compensation cases arising

- 34 -

under Rule 22(g)) shall be filed in the Appellate Court in accordance with the requirements

for briefs within 30 days after the entry of the order. A supporting record conforming to the

requirements of Rule 328 shall be filed with the petition.

(2) Answer. Any other party may file an original and three copies of an answer (or

original and five copies in workers’ compensation cases arising under Rule 22(g)) within 21

days of the filing of the petition, together with a supplementary supporting record

conforming to Rule 328 consisting of any additional parts of the record the party desires to

have considered by the Appellate Court. No reply will be received except by leave of court or

a judge thereof.

(3) Appendix to Petition; Abstract. The petition shall include, as an appendix, a copy of

the order appealed from, and of any opinion, memorandum, or findings of fact entered by the

trial judge, and a table of contents of the record on appeal in the form provided in Rule

342(a). If the Appellate Court orders that an abstract of the record be filed, it shall be in the

form set forth in Rule 342(b) and shall be filed within the time fixed in the order.

(4) Extensions of Time. The above time limits may be extended by the reviewing court or

a judge thereof upon notice and motion, accompanied by an affidavit showing good cause,

filed before expiration of the original or extended time.

(5) Stay; Notice of Allowance of Petition. If the petition is granted, the proceedings in the

trial court are stayed. Upon good cause shown, the Appellate Court or a judge thereof may

vacate or modify the stay, and may require the petitioner to file an appropriate bond. Within

48 hours after the granting of the petition, the clerk shall send notice thereof to the clerk of

the circuit court.

(6) Additional Record. If leave to appeal is allowed, any party to the appeal may request

that additional portions of the record on appeal be prepared as provided in Rule 321 et seq.,

or the court may order the appellant to file the record, which shall be filed within 35 days of

the date on which such leave was allowed. The filing of an additional record shall not affect

the time for filing briefs under this rule.

(7) Briefs. A party may allow his or her petition or answer to stand as his or her brief or

may file a further brief in lieu of or in addition thereto. If a party elects to allow a petition or

answer to stand as a brief, he or she must notify the other parties and the Clerk of the

Appellate Court on or before the due date of the brief and supply the court with the requisite

number of briefs required by Rule 341(e). If the appellant elects to file a further brief, it must

be filed within 35 days from the date on which leave to appeal was granted. The appellant’s

brief, and other briefs if filed, shall conform to the schedule and requirements as provided in

Rules 341 through 343. Oral argument may be requested as provided in Rule 352(a).

Amended October 21, 1969, effective January 1, 1970, and amended effective September 1, 1974;

amended July 30, 1979, effective October 15, 1979; amended February 19, 1982, effective April 1,

1982; amended May 28, 1982, effective July 1, 1982; amended June 15, 1982, effective July 1, 1982;

amended August 9, 1983, effective October 1, 1983; amended September 16, 1983, effective October

1, 1983; amended December 17, 1993, effective February 1, 1994; amended March 26, 1996,

- 35 -

effective immediately; amended December 31, 2002, effective January 1, 2003; amended December

5, 2003, effective January 1, 2004; amended May 24, 2006, effective September 1, 2006; amended

February 26, 2010, effective immediately; amended February 16, 2011, effective immediately;

amended May 29, 2014, eff. July 1, 2014.

Committee Comment

(May 29, 2014)

Subparagraph (c)(5)

In exceptional circumstances or by agreement of the parties, it may be appropriate for the

parties to continue with certain aspects of the case (such as discovery, for example), provided

that such continuation does not interfere with appellate review or otherwise offend the

notions of substantial justice. If the stay is vacated or modified, the trial court remains (as

with any interlocutory appeal) restrained from entering an order which interferes with the

appellate review, such as modifying the trial court order that is the subject of the appeal.

Committee Comments

(February 26, 2010)

In 2010, this rule was reorganized and renumbered for the sake of clarity. No substantive

changes were made in this revision.

Paragraph (b)

Paragraph (b) was added to Rule 306 in 2004 to provide a special, expedited procedure to be

followed in petitioning for leave to appeal from interlocutory orders affecting the care and

custody of unemancipated minors. This procedure applies only to petitions for leave to appeal

filed pursuant to subparagraph (a)(5) of this rule. The goal of this special procedure is to provide

a faster means for achieving permanency for not only abused or neglected children, but also

children whose custody is at issue in dissolution of marriage, adoption, and other proceedings.

Paragraph (c)

Paragraph (c) sets forth the procedures to be followed in petitioning for leave to appeal

pursuant to any subparagraph of paragraph (a) except subparagraph (a)(5).

Subparagraph (c)(1)

This subparagraph was amended in 1979 to reflect changes in Rule 321 that eliminated the

requirement that a praecipe for the record be filed.

Subparagraph (c)(2)

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Subparagraph (c)(2) permits answers to the petition to be filed within 21 days after the due

date of the petition instead of “within 15 days after the petition is served upon him.” They are not

required to be printed as formerly, but may also be otherwise duplicated as are briefs. Former

Rule 30 was silent as to a reply. Subparagraph (c)(2) provides that there shall be no reply except

by leave.

Subparagraph (c)(3)

As originally promulgated, and as amended in 1974, this subparagraph provided that

“excerpts from record” or an abstract should be filed. This represented a change from former

Rule 30, which required the filing of a printed abstract of record. It was amended in 1979 to

delete reference to “excerpts from record” to reflect the changes made in that year to provide for

the hearing of most appeals on the original record, thus dispensing with the reproduction of

“excerpts” from the record, and with an abstract as well, unless the court orders that one must be

prepared. See the committee comments to Rule 342.

Subparagraph (c)(4)

Subparagraph (c)(4) is a general provision for extensions of time and does not change the

practice in existence at the time of the adoption of the rule. In 1982, this subparagraph was

reworded but not changed in substance.

Subparagraph (c)(5)

Subparagraph (c)(5) provides that the granting of the appeal from an order allowing a new

trial ipso facto operates as a stay. The former rule required the giving of some kind of a bond to

make a stay effective. A bond is not always appropriate. Subparagraph (c)(5) requires a bond

only after a showing of good cause.

Subparagraph (c)(6)

As originally adopted Rule 343 provided that in cases in which a reviewing court grants

leave to appeal, or allows an appeal as a matter of right, the appellant must file his brief within

35 days of the order allowing the appeal, and that in cases in which a party allows his petition for

leave to appeal or his answer to such a petition to stand as his brief, he must notify the other

parties and the clerk of the reviewing court. These provisions were applicable to all cases in

which leave to appeal was required, whether to the Appellate Court or the Supreme Court. Rules

306(c)(6), 308(d), and 315(g) provided for the briefing schedule by cross-reference to Rule 343.

In 1974, Rule 315(g), dealing with briefs in appeals to the Supreme Court from the Appellate

Court, was amended to provide in detail for the filing of briefs, leaving the general language in

Rule 343(a) relating to the filing of the appellant’s brief in cases taken on motion for leave to

appeal applicable only to appeals under Rules 306 and 308, and the provision for notice of

intention to let the petition or answer stand as a brief applicable only to appeals under Rule 306.

In the interest of clarity these provisions were placed in Rules 306(c)(6) and 308(d) and the

general language deleted from Rule 343(a). This represents no change in practice. The briefing

- 37 -

schedule after the due date of the appellant’s brief (35 days for the appellee’s brief and 14 days

for a reply brief) remains governed by Rule 343(a).

Subparagraph (c)(7)

Former Rule 30 provided that after allowance of the appeal and the filing of the stay bond,

“The case is then pending on appeal.” This obvious fact was omitted from Rule 306 as

unnecessary. Subparagraph (c)(7) does provide that if the appeal is granted oral argument may be

requested as provided in Rule 352.

Committee Comments

(Revised September 1983)

This rule replaced former Rule 30, which was in effect from January 1, 1964, to December

31, 1966, and which in turn was derived from former section 77(2) of the Civil Practice Act,

repealed effective January 1, 1964 (Laws of 1963, p. 2691, § 2). The Judicial Article of the new

Illinois constitution (art. VI, § 6) contains substantially the same language on interlocutory

appeals that appeared in the 1964 Judicial Amendment, and authorizes this rule in the following

language:

“The Supreme Court may provide by rule for appeals to the Appellate Court from other than

final judgments of the Circuit Courts.”

Paragraph (a)

Paragraph (a), as originally adopted, made no change in the prior rule except to permit the

petition to be duplicated in the same manner as a brief (see Rule 344) instead of always being

printed. The petition is to be filed within 30 days, subject to an extension of time under

paragraph (e).

Paragraph (a) was amended in 1969 by adding subparagraph (2), denominating as

subparagraph (1) what was formerly entire paragraph (a), and making appropriate changes in the

headings. Subparagraph (2), together with Rule 366(b)(2)(v), also added in 1969, abrogates the

ruling in Keen v. Davis, 108 Ill. App. 2d 55, 63-64 (5th Dist. 1969), denying reviewability, on

appeal from an order allowing a new trial, of questions raised by other rulings of the trial court

on the post-trial motion. Revised Rule 366(b)(2)(v) makes it clear that the absence of a final

judgment is not a bar to review of all the rulings of the trial court on the post-trial motions. See

the Committee Comments to that rule.

In 1982, paragraph (a)(1) was amended by adding subparagraphs (i), (ii), (iii), and (iv),

expanding the instances in which appeals could be sought in the appellate court. Also in 1982,

subparagraph (a)(2) was amended to make it clear that post-trial motions are before the

reviewing court without the necessity of filing a cross-appeal only when the appellate court has

granted a petition for leave to appeal an order granting a new trial.

- 38 -

In 1983, paragraph (a)(1)(ii) was amended to permit a party to seek leave to appeal from a

circuit court order allowing or denying a motion to transfer a case to another county within

Illinois on the grounds of forum non conveniens. See Torres v. Walsh (1983) 97 Ill. 2d 338;

Mesa v. Chicago & North Western Transportation Co. (1933), 97 Ill. 2d 356.

Paragraph (b)

Paragraph (b) was amended in 1979 to reflect changes in Rule 321 that eliminated the

requirement that a praecipe for record be filed.

Paragraph (c)

Paragraph (c) permits answers to the petition to be filed within 21 days after the due date of

the petition instead of “within 15 days after the petition is served upon him.” They are not

required to be printed as formerly, but may also be otherwise duplicated as are briefs. Former

Rule 30 was silent as to a reply. Paragraph (c) provides that there shall be no reply except by

leave.

Paragraph (d)

As originally promulgated, and as amended in 1974, paragraph (d) provided that “excerpts

from record” or an abstract should be filed. This represented a change from former Rule 30,

which required the filing of a printed abstract of record. It was amended in 1979 to delete

reference to “excerpts from record” to reflect the changes made in that year to provide for the

hearing of most appeals on the original record, thus dispensing with the reproduction of

“excerpts” from the record, and with an abstract as well, unless the court orders that one must be

prepared. See the committee comments to Rule 342.

Paragraph (e)

Paragraph (e) is a general provision for extensions of time and does not change the practice

in existence at the time of the adoption of the rule. In 1982, this paragraph was reworded but not

changed in substance.

Paragraph (f)

Paragraph (f) provides that the granting of the appeal from an order allowing a new trial ipso

facto operates as a stay. The former rule required the giving of some kind of a bond to make a

stay effective. A bond is not always appropriate. Paragraph (f) requires a bond only after a

showing of good cause.

Paragraph (g)

As originally adopted Rule 343 provided that in cases in which a reviewing court grants

leave to appeal, or allows an appeal as a matter of right, the appellant must file his brief within

35 days of the order allowing the appeal, and that in cases in which a party allows his petition for

- 39 -

leave to appeal or his answer to such a petition to stand as his brief, he must notify the other

parties and the clerk of the reviewing court. These provisions were applicable to all cases in

which leave to appeal was required, whether to the Appellate Court or the Supreme Court. Rules

306(g), 308(d), and 315(g) provided for the briefing schedule by cross-reference to Rule 343. In

1974, Rule 315(g), dealing with briefs in appeals to the Supreme Court from the Appellate Court,

was amended to provide in detail for the filing of briefs, leaving the general language in Rule

343(a) relating to the filing of the appellant’s brief in cases taken on motion for leave to appeal

applicable only to appeals under Rules 306 and 308, and the provision for notice of intention to

let the petition or answer stand as a brief applicable only to appeals under Rule 306. In the

interest of clarity these provisions were placed in Rules 306(g) and 308(d) and the general

language deleted from Rule 343(a). This represents no change in practice. The briefing schedule

after the due date of the appellant’s brief (35 days for the appellee’s brief and 14 days for a reply

brief) remains governed by Rule 343(a).

Paragraph (h)

Former Rule 30 provided that after allowance of the appeal and the filing of the stay bond,

“The case is then pending on appeal.” This obvious fact was omitted from Rule 306 as

unnecessary. Paragraph (h) does provide that if the appeal is granted oral argument may be

requested as provided in Rule 352.

Amended Rule 707

Rule 707. Permission for an Out-of-State Attorney to Provide Legal Services in

Proceedings in Illinois

(a) Permission to Provide Legal Services in a Proceeding in Illinois. Upon filing pursuant to

this rule of a verified Statement by an eligible out-of-state attorney and the filing of an

appearance of an active status Illinois attorney associated with the attorney in the proceeding, the

out-of-state attorney is permitted to appear as counsel and provide legal services in the

proceeding without order of the tribunal. The permission is subject to termination pursuant to

this rule.

(b) Eligible Out-of-State Attorney. An out-of-state attorney is eligible for permission to appear

under this rule if the attorney:

(1) is admitted to practice law without limitation and is authorized to practice law in another

state, territory, or commonwealth of the United States, in the District of Columbia, or in a

foreign country and is not prohibited from practice in any jurisdiction or any other

jurisdiction by reason of discipline, resignation with charges pending, or permanent

retirement;

- 40 -

(2) on or after January 1, 2014, has not entered an appearance in more than five other

proceedings under the provisions of this rule in the calendar year in which the Statement is

filed;

(3) has not been enjoined or otherwise prohibited from obtaining permission under this rule;

and

(4) has not been admitted to the practice of law in Illinois by unlimited or conditional

admission. The admission of an attorney as a house counsel pursuant to Rule 716, as a legal

services program lawyer pursuant to Rule 717, or as a foreign legal counsel pursuant to Rules

712 and 713 does not preclude that attorney from obtaining permission to provide legal

services under this rule.

(c) Proceedings Requiring Permission. The following proceedings require permission under

this rule:

(1) a case before a court of the State of Illinois;

(2) a court-annexed alternative dispute resolution proceeding; and

(3) a case before an agency or administrative tribunal of the State of Illinois or of a unit of

local government in Illinois, if the representation by the out-of-state attorney constitutes the

practice of law in Illinois or the agency or tribunal requires that a representative be an

attorney.

The appeal or review of a proceeding before a different tribunal is a separate proceeding for

purposes of this rule.

(d) Statement. The out-of-state attorney shall include the following information in the Statement

and shall serve the Statement upon the Administrator of the Attorney Registration and

Disciplinary Commission, the Illinois counsel with whom the attorney is associated in the

proceeding, the attorney’s client, and all parties to the proceeding entitled to notice:

(1) the attorney’s full name, all addresses of offices from which the attorney practices law

and related email addresses and telephone numbers;

(2) the name of the party or parties that the attorney represents in the proceeding;

(3) a listing of all proceedings in which the attorney has filed an appearance pursuant to this

rule in the calendar year in which the Statement is filed and the ARDC registration number of

the attorney, if assigned previously;

(4) a listing of all jurisdictions in which the attorney has been admitted and the full name

under which the attorney has been admitted and the license or bar number in each such

jurisdiction, together with a letter or certificate of good standing from each such jurisdiction,

except for federal courts and agencies of the United States;

- 41 -

(5) a statement describing any office or other presence of the attorney for the practice of law

in Illinois;

(6) a statement that the attorney submits to the disciplinary authority of the Supreme Court of

Illinois;

(7) a statement that the attorney has undertaken to become familiar with and to comply, as if

admitted to practice in Illinois, with the rules of the Supreme Court of Illinois, including the

Illinois Rules of Professional Conduct and the Supreme Court Rules on Admission and

Discipline of Attorneys, and other Illinois law and practices that pertain to the proceeding;

(8) the full name, business address and ARDC number of the Illinois attorney with whom the

attorney has associated in the matter; and

(9) a certificate of service of the Statement upon all entitled to service under this rule.

(e) Additional Disclosures. The out-of-state attorney shall advise the Administrator of new or

additional information related to items 4, 5 and 8 of the Statement, shall report a criminal

conviction or discipline as required by Supreme Court Rule 761 and Rule 8.3(d) of the Illinois

Rules of Professional Conduct, respectively, and shall report the conclusion of the attorney’s

practice in the proceeding. The attorney shall make these disclosures in writing to the

Administrator within 30 days of when the information becomes known to the attorney. The out-

of-state attorney shall provide waivers upon request of the Administrator to authorize bar

admission or disciplinary authorities to disclose information to the Administrator.

(f) Fee per Proceeding. At the time of serving the Statement upon the Administrator, the out-of-

state attorney shall submit to the Administrator a nonrefundable fee in the amount of $250 per

proceeding, except that no fee shall be due from an attorney appointed to represent an indigent

defendant in a criminal or civil case, from an attorney employed by or associated with a

nonprofit legal service organization in a civil case involving the client of such a program, from

an attorney providing legal services pursuant to Rule 718, or from an attorney employed by the

United States Department of Justice and representing the United States. Fees shall be deposited

in the disciplinary fund maintained pursuant to Rule 751(e)(6). The Attorney Registration and

Disciplinary Commission shall retain $75 of each fee received under this section to fund its

expenses to administer this rule. The $175 balance of each such fee shall be remitted to a trust

fund established by the Attorney Registration and Disciplinary Commission for the Court’s

Access to Justice Commission and used at the Court’s discretion to provide funding for the work

of the Commission on Access to Justice and related Court programs that improve access to

justice for low-income and disadvantaged Illinois residents, as well as to provide funding to the

Lawyers Trust Fund of Illinois for distribution to legal aid organizations serving the State. The

Court or its designee may direct the deposit of other funds into the trust fund. The Attorney

Registration and Disciplinary Commission shall act in a ministerial capacity only and shall have

no interest in or discretion concerning the trust fund. The Attorney Registration and Disciplinary

Commission shall make payments from the trust fund pursuant to written direction from the

Court or its designee. Such directions may be submitted electronically.

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(g) Administrator’s Review of Statement. The Administrator of the Attorney Registration and

Disciplinary Commission shall conduct an inquiry into the Statement. It shall be the duty of the

out-of-state attorney and Illinois attorneys to respond expeditiously to requests for information

from the Administrator related to an inquiry under this section.

(h) Registration Requirement. An out-of-state attorney who appears in a proceeding pursuant

to this rule shall register with the Attorney Registration and Disciplinary Commission and pay

the registration fee required by Rule 756 for each year in which the attorney has any appearance

of record pursuant to this rule. The attorney shall register within 30 days of the filing of a

Statement pursuant to this rule if the attorney is not yet registered.

(i) Duration of Permission to Practice. The permission to practice law shall extend throughout

the out-of-state attorney’s practice in the proceeding unless earlier terminated. The Supreme

Court, the Chief Judge of the Circuit Court for the circuit in which a proceeding is pending, or

the court in which a proceeding is pending may terminate the permission to practice upon its own

motion or upon motion of the Administrator if it determines that grounds exist for termination.

Grounds may include, but are not limited to:

(1) the failure of the out-of-state attorney to have or maintain qualifications required under

this rule;

(2) the conduct of the attorney inconsistent with Rule 5.5 or other rules of the Illinois Rules

of Professional Conduct, the Supreme Court Rules on Admission and Discipline of Attorneys

or other rules of the Supreme Court, or other Illinois law and practices that pertain to the

proceeding;

(3) the conduct of the attorney in the proceeding;

(4) the absence of an Illinois attorney who is associated with the out-of-state lawyer as

counsel, who has an appearance of record in the proceeding, and who participates actively in

the proceeding pursuant to Rule 5.5(c)(1) of the Illinois Rules of Professional Conduct;

(5) inaccuracies or omissions in the Statement;

(6) the failure of the attorney or the associated Illinois lawyer to comply with requests of the

Administrator for information; or

(7) the failure of the attorney to pay the per-proceeding fee under this rule or to comply with

registration requirements under Rule 756.

(j) Disciplinary Authority. The out-of-state attorney shall be subject to the disciplinary and

unauthorized practice of law authority of the Supreme Court. The Administrator may institute

disciplinary or unauthorized practice of law investigations and proceedings related to the out-of-

state attorney. The Administrator may seek interim relief in the Supreme Court pursuant to the

procedure set forth in Rule 774. The Administrator may also refer matters to the disciplinary

authority of any other jurisdiction in which the attorney may be licensed.

- 43 -

Amended June 12, 1992, effective July 1, 1992; amended October 2, 2006, effective July 1, 2007;

amended June 18, 2013, eff. July 1, 2013; amended May 29, 2014, eff. July 1, 2014.

Page 1 of 12

Illinois Association of Defense Trial Counsel

Springfield, Illinois | www.iadtc.org | 800-232-0169

IDC Quarterly | Volume 24, Number 3 (24.3.60)

Feature Article Steven M. Puiszis

Hinshaw & Culbertson LLP, Chicago

Understanding Illinois’ New Ediscovery Rules

Introduction

On May 29, 2014, the Illinois Supreme Court formally adopted rules relating to the discovery of

electronically stored information (ESI). To accomplish this, the court amended Illinois Supreme Court

Rules 201, 214, and 218. Illinois’ new ediscovery rules (Rules) go into effect July 1, 2014.

As a way of controlling ediscovery costs, the Rules incorporate the concept of proportionality

from Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure. Supreme Court Rule 201(a), as

amended, provides “discovery requests that are disproportionate in terms of burden or expense should

be avoided.” Ill. S. Ct. R. 201(a) (eff. July 1, 2014). Additionally, the Committee Comments to

Supreme Court Rule 201(c) adopted one of the approaches taken in the Seventh Circuit Ediscovery

Pilot Program Principles. The comments list various categories of burdensome ESI that can be

excluded from discovery under a proportionality analysis. Rule 201(c)’s Committee Comments further

explain, “if any party intends to request the preservation or production of potentially burdensome

categories of ESI then that intention should be addressed at the initial case management conference . .

. or as soon thereafter as practicable.” Ill. S. Ct. R. 201(c), Committee Comments (adopted May 29,

2014).

The Rules are also notable for what is not covered. They do not address several issues that have

arisen under the federal rules relating to the format of ESI when produced in discovery. The Rules

also do not touch upon when the duty to preserve ESI arises, what measures a party should take to

preserve ESI, and sanctions for the loss of ESI.

This article will briefly highlight the differences between ESI and conventional paper discovery

that prompted the adoption of the Rules. It will outline Illinois’ new Rules and provide practice tips

for their application.

How Discovery of ESI is Different than Paper Discovery

A common misperception about electronic discovery is that it is easy, and should be treated like

paper discovery. If that misperception were true, then there would have been no need for the adoption

of rules relating to the discovery of ESI. Ediscovery presents a number of unique challenges unlike

anything encountered when practicing in the era of paper-based discovery. ESI differs from paper

records in at least seven significant ways:

Volume

First, the volume of potentially available ESI in discovery differs from traditional paper

discovery. Today, computers and mobile devices are the source of virtually all information, most of

which is never printed on paper outside of a litigation context. Largely, email has replaced telephone

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conversations and mail. In 2003, it was estimated that “close to 100 billion e-mails are sent daily,” and

that number has only grown since. George L. Paul & Jason R. Baron, Information Inflation: Can the

Legal System Adapt?, 13 Rich. J.L.&Tech. 10, (2007), available at http://law.richmond.edu/

jolt/v13i3/article 10.pdf. Additionally, the authors highlighted, “[t]he amount of stored information

continues to grow exponentially,” explaining:

Perhaps more easily grasped, the amount of information in business has increased by

thousands, if not tens of thousands of times in the last few years. In a small business,

whereas formerly there was usually one four-drawer file cabinet full of paper records, now

there is the equivalent of two thousand four-drawer file cabinets full of such records, all

contained in a cubic foot or so in the form of electronically stored information. This is a sea

change. Id.

Today, for less than $100, one can purchase a hard drive with one terabyte of storage for a home

computer. One terabyte of storage equates to 50,000 trees made into paper and printed. The entire

printed collection of the U.S. Library of Congress would take only 10 terabytes of storage. How Much

Information? available at: http://www2.sims.berkley.edu/research/projects/how-

muchinfo/datapowers.html.

Because of the explosion in the amount of electronic information, the cost to collect and review

ESI for relevancy and privilege is far greater than that involving paper discovery.

Metadata

Another way ESI differs from paper discovery is metadata. ESI creates information about itself,

which is called metadata. Metadata is generally not visible to the user, and is automatically generated

by the system or application used to create an electronic document or another type of ESI. Metadata

tells who created a document, when it was created, when it was last accessed, who last viewed the

document, if the document was modified, when it was modified, who modified it, and how many

versions of the document exist. It can also tell you who sent an email, when it was sent, who was

copied on the email, and to whom it was sent. Depending on the nature of the application or program

involved, a computer or other device can create hundreds of fields of metadata about an electronic

document or other types of ESI.

The information provided by the generation of metadata can be useful. For instance, it can be used

to authenticate a document or identify who sent an email when that is unclear or unknown. But, for the

most part, many of the metadata fields have little or no evidentiary value or usefulness in litigation.

Dynamic Nature

ESI also differs from paper records because it is dynamic in nature. Various metadata fields

automatically change simply by clicking on a document to print, or move it to a folder, or transfer it to

a disc for production in discovery. Simply turning on or booting up a computer can alter fragmented

information or residual data on a computer’s hard drive. Certain forms of ESI, such as information in

a computer’s random access memory, or in user or server logs, in cache files, and in browser histories

are ephemeral in nature, existing only for a relatively short time. Through forensic examination of a

computer’s hard drive, one may be able to discover fragmented or deleted data, and ephemeral data is

extremely difficult to preserve given its short life span during which its recovery could even occur.

Exists in Various Formats

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Additionally, unlike paper documents, ESI can be created and stored in various formats. There

are thousands of formats used to create or store ESI, many of which are proprietary in nature. Without

access to the application used to create a particular form of ESI, it may be unreadable and useless

when produced in its native state. Therefore, it is critical to know the format in which requested ESI is

created and stored. ESI produced in its native state will contain metadata, but can be very difficult to

bate stamp and impossible to redact. ESI can also be produced in an imaged format, the most common

of which include portable document format (.pdf), tagged information file format (.tiff), or joint

photographic experts group (.jpg). While ESI produced in an imaged format can be bate stamped,

redacted, and viewed by the party receiving it, no metadata will be included with the image unless one

adds a load file to the image. The addition of a load file to ESI produced in an imaged format will

require the parties to agree on which metadata fields to include, and will add to the cost of production.

There are pros and cons to producing ESI in a native or imaged format, which counsel should

carefully evaluate before any production occurs.

Dispersion of Data

Another salient difference is the dispersion of ESI. With paper records, finding the warehouse

where a company’s records were stored was relatively easy. When it comes to ESI, however, figuring

out where the documents are stored or located can present a significant challenge. ESI can be stored

locally on a company’s desktop computers, on portable laptops or tablets, on mobile phones, or on a

flash drive or disc. ESI may be found on home computers if employees are allowed to work from

home, or could be stored on a company’s servers located in a different state or country. Determining

all the locations where ESI may be stored is no easy task as reflected by the diagram below:

Page 4 of 12

Additionally, emails may exist in a variety of locations. The next diagram shows the various

routes a single email can potentially take between the sender and recipient:

The route an email takes depends on the network configuration of the sender and recipient’s email

systems. How long an email resides in any of these locations will depend upon the retention practices

of any persons or entities involved in the transmission.

Difficulty of Disposal

While ESI is dynamic in nature and certain forms of ESI can be readily altered through the

normal operation of a computer (e.g. metadata or fragmented data), electronic documents can be more

difficult to dispose of than their paper counterparts. Once a paper document is shredded, it is

irretrievable. On the other hand, hitting the delete key on a computer does not delete all information.

Instead, hitting the delete key simply alters the computer’s file allocation table or disk directory so that

the computer reads the space on the hard drive where the document is stored as available for reuse.

Until the device reuses or overwrites that space completely, the deleted information, or at least a

portion of it, is potentially recoverable through a forensic examination of the computer’s hard drive.

The wide dispersion of ESI also makes it more difficult to dispose. Attempting to delete

information on a work computer, even if successful, will not delete copies on portable storage devices,

home computers, or back-up tapes.

Legacy or Obsolete Data

Think back to the computers used merely a decade ago. The mobile phones carried today have

more memory and computing power than those computers. Hardware, software, and computer systems

grow obsolete in just a matter of a few years given the rate at which technology advances. It is not

uncommon to encounter data created by software or on systems that a vendor no longer supports.

Thus, it is not unusual for companies to periodically change their computer systems, software

applications or technology platforms. If a change to a new system, application, or platform occurs, and

Page 5 of 12

the information created by the legacy application or system is not migrated to the new platform, the

information on the legacy system can be difficult to retrieve or process. The potential relevancy of

legacy data can be difficult to determine without restoration, which can be extremely time consuming

and costly to accomplish.

In light of these differences, one must be prepared to refute the notion that discovery of ESI

should be treated just like paper discovery. As one court aptly noted:

[T]he Court is not persuaded by the plaintiffs’ attempt to equate traditional paper-based

discovery with the discovery of e-mail files. Several commentators have noted important

differences between the two…. Chief among these differences is the sheer volume of

electronic information. E-mails have replaced other forms of communication besides just

paper-based communication. Many informal messages that were previously relayed by

telephone or at the water cooler are now sent via e-mail. Additionally, computers have the

ability to capture several copies (or drafts) of the same e-mail, thus multiplying the volume

of documents. All of these e-mails must be scanned for both relevance and privilege. Also,

unlike most paper-based discovery, archived e-mails typically lack a coherent filing system.

Moreover, dated archival systems commonly store information on magnetic tapes which

have become obsolete. Thus, parties incur additional costs in translating the data from the

tapes into useable form. One commentator has suggested that given the extraordinary costs

of converting obsolete backup tapes into useable form, the requesting party should be

required to show that production will likely result in the discovery of relevant information.

Byers v. Illinois State Police, 99 C 8105, 2002 WL 1264004 at *10 (N.D. Ill. June 3, 2002).

Illinois’ Ediscovery Rules

Definition of ESI

The Supreme Court adopted an amendment to Rule 201(b) that includes a definition of ESI in the

scope of discovery. The amendment adds subparagraph (4) to Rule 201(b) and provides that ESI:

Shall include any writings, drawings, graphs, charts, photographs, sound records, images,

and any other data or data compilations in any medium from which electronically stored

information can be obtained either directly or, if necessary, after translation by the

responding party into a reasonably useable form.

Ill S. Ct. R. 201(b) (eff. July 1, 2014).

The Committee Comments to subparagraph (4) explain that the definition of ESI was intended to

comport with the Fed. R. Civ. P. 34(a)(1)(A). Ill. S. Ct. R. 201(b), Committee Comments (adopted

May 29, 2014). Because the definition of ESI in Rule 201(b)(4) is virtually identical to Rule

34(a)(1)(A), decisions interpreting Fed. R. Civ. P. 34(a) should be illustrative of the scope of

potentially discoverable ESI in Illinois.

The Committee Comments to Rule 201(b)(4) explain the definition of ESI “is intended to be

flexible and expansive as technology changes.” Id. While Illinois’ definition of ESI is intended to be

flexible enough to accommodate technological advances, it is self-limiting. If electronic data is not

capable of being stored, then it should fall outside the scope of discovery under the Illinois rule. See,

e.g, Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 177 (S.D.N.Y. 2004) (addressing the

failure to preserve wave patterns on oscilloscopes).

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The reference in Rule 201(b)(4) to translation of ESI into a reasonably useable form recognizes

that ESI can be created in unique or proprietary formats or on legacy software that when produced in a

native format may need to be converted into another format simply to be reviewed by the party

receiving the ESI.

Proportionality

The concept of proportionality currently found in Fed. R. Civ. P. 26(b)(2)(C)(iii) was added to

Illinois Supreme Court Rule 201(c), which deals with the prevention of discovery abuse.

Subparagraph (3) of Rule 201(c) now provides:

Proportionality. When making an order under this Section, the court may determine whether

the likely burden or expense of the proposed discovery including electronically stored

information, outweighs the likely benefit, taking into account the amount in controversy, the

resources of the parties, the importance of the issues in litigation, and the importance of the

requested discovery in resolving those issues.

Ill. S. Ct. R. 201(c)(3) (eff. July 1, 2014).

While the addition of proportionality into Rule 201(c) was intended to control the burden and

expense of ediscovery, like its counterpart in the federal rules, it is not necessarily limited to

ediscovery. Rather, Rule 201(c)(3) applies to any discovery methods available under our Supreme

Court Rules. This conclusion is confirmed by the 2014 amendment to Supreme Court Rule 201(a).

Previously, Rule 201(a) provided that the “[d]uplication of discovery methods to obtain the same

information should be avoided.” Ill. S. Ct. R. 201(a) (eff. Jan. 1, 2013). After its 2014 amendment,

Rule 201(a) states: “Duplication of discovery methods to obtain the same information and discovery

requests that are disproportionate in terms of burden or expense should be avoided.” Ill. S. Ct. R.

201(a) (eff. July 1, 2014) (emphasis added). Note that the language added to Rule 201(a) addresses

discovery requests generally, and is not limited to requests for electronic discovery.

Additionally, the proportionality provision added to Supreme Court Rule 201(c) in subparagraph (3)

employs the phrase “including electronically stored information.” Ill. S. Ct. R. 201(c)(3) (eff. July 1,

2014) (emphasis added). Had the Supreme Court Rules Committee intended to limit Rule 201(c)’s

proportionality analysis only to the discovery of ESI, it would have only provided that Rule 201(c)(3)

applies to the discovery of ESI rather than employing the phrase “including electronically stored

information.”

The concept of proportionality addresses the marginal utility of the requested discovery. See, e.g.,

Byers, 2002 WL 1264004 at *11 (stating, “when faced with a request that would impose significant

cost on the responding party a court should focus on the marginal utility of the proposed search”). The

Committee Comments to Rule 201(c) explain that proportionality is intended to apply when the

benefit of the discovery being sought is outweighed by the cost and burden of producing the requested

information. Ill. S. Ct. R. 201(c), Committee Comments (adopted May 29, 2014).

Several commentators have cogently explained why the concept of proportionality was added to

the Federal Rules:

One of the recurrent concerns about paper discovery was that extremely broad discovery

requests were easy to draft, extremely burdensome to satisfy and often produce little or

nothing of importance to the case. In 1983, the “proportionality” provisions now contained

in Rule 26(b)(2)(C) were added to address these concerns.

Page 7 of 12

Shira A. Scheindlin and Daniel J. Capra, Electronic Discovery and Digital Evidence, CASES AND

MATERIALS 4 (2009). Given the added burden and cost of electronic discovery, the concept of

proportionality has become even more important.

When asserting a proportionality objection, counsel should consider providing the court with as

much factual information as can be compiled. For instance, if a party’s discovery request would

require the defendant to search 50 computers, the defendant should provide an estimate of the time

and costs involved to comply with that request. While the amount of the damages sought is relevant to

the proportionality analysis, remember that one of the benchmarks against which the ediscovery cost

will be measured is “the amount in controversy.”

Because one factor to consider in any proportionality analysis is the importance of the issue in the

litigation, which the requested discovery is targeting, discovery on tangential issues having little

importance to the ultimate resolution of the action should be a prime candidate for a proportionality

objection. Because proportionality focuses on the marginal utility of the requested discovery, requests

for information from backup tapes and other sources of ESI that are extremely costly to restore and

produce should also trigger a proportionality objection when the information can be obtained from a

less costly or burdensome source.

Frequently, court and counsel may not realize how broad a discovery request is that seeks all

communications about a particular subject matter. Compliance with such a request in some instances

could require the search of hundreds or thousands of computers depending on the size of the company.

In this scenario, counsel should remember that another factor in any proportionality analysis is the

importance of the requested discovery in resolving the issues in litigation. As a result, counsel should

seek to collaboratively identify with opposing counsel those persons (data custodians) who are most

likely to have relevant information. ESI from those custodians should be produced, and a

proportionality objection should be raised to producing ESI from other persons who are not likely to

have any relevant information. Again, however, counsel should be prepared to present information on

the cost and burden of producing that additional ESI to the court.

Categories of ESI That Often May Not Be Discoverable

The Committee Comments to subparagraph (3) of Rule 201(c) explain that a proportionality

analysis “often may indicate” that certain “categories of ESI should not be discoverable.” Ill S. Ct. R.

201(c)(3), Committee Comments (adopted May 29, 2014).

The Comment then lists the following eight (8) categories of burdensome ESI that often may not

be discoverable under a proportionality analysis:

• Deleted, slack, fragmented or unallocated data on hard drives;

• Random access memory (RAM) or other ephemeral data;

• On-line access data;

• Data in metadata fields that are frequently updated automatically;

• Backup data that is substantially duplicative of data that is more accessible elsewhere;

• Legacy data;

• Information whose retrieval cannot be accomplished without substantial additional programming or

without transforming it into another form before search and retrieval can be achieved; and

• Other forms of ESI whose preservation or production requires extraordinary affirmative measures.

Ill. S. Ct. R. 201(c)(3), Committee Comments (adopted May 29, 2014).

The concept that certain categories of ESI may not be generally discoverable was drawn from

Principle 2.04(d) of the Seventh Circuit’s Electronic Discovery Pilot Program Principles available at:

Page 8 of 12

http://www.discoverypilot.com/sites/default/files/Principles8_10.pdf. These categories provide another

opportunity for counsel to raise a valid proportionality objection.

The Committee Comments further note, however, that a proportionality analysis “may support the

discovery of some of the types of ESI” listed above. The Comments further explain that one should

not view the list of burdensome categories of ESI as “static, since technological changes eventually

might reduce the cost of producing some of these types of ESI.” Additionally, the Comments clarify

that proportionality requires a “case-by-case analysis.” Ill. S. Ct. R. 201(c)(3), Committee Comments

(adopted May 29, 2014).

Finally, it is important to note that the Committee Comments to Rule 201(c) provide:

If any party intends to request the preservation or production of potentially burdensome

categories of ESI, then that intention should be addressed at the initial case management

conference in accordance with Supreme Court Rule 218(a)(10) or as soon thereafter as

practicable.

Ill. S. Ct. R. 201(c), Committee Comments (adopted May 29, 2014). If a party fails to request the

preservation of one or more of these categories of burdensome ESI, then in fairness, that party should

not be able to later complain that it was not preserved or bring a motion for sanctions for its loss.

Forms of ESI Production

Supreme Court Rule 214 was amended to specifically provide that requests for written discovery

can include ESI as defined under Rule 201(b)(4). The amendment adds subparagraph (b) to Rule 214,

which states: “If a discovery request does not specify a form for producing electronically stored

information, a party must produce it in a form or forms in which it is ordinarily maintained or in a

reasonably useable form or forms.” Ill. S. Ct. R. 214(b) (eff. July 1, 2014). Supreme Court Rule

214(b) is based upon Fed. R. Civ. P. 34(b)(2)(E)(ii), and therefore federal decisions interpreting that

particular provision of the federal discovery rules may provide guidance in complying with Rule

214(b)’s requirements.

The amendment to Rule 214(c) adds a provision, which recognizes that a party may object to a

production request “on the basis that the burden or expense of producing the requested materials

would be disproportionate to the likely benefit in light of the factors set out in Rule 201(c)(3).” Ill. S.

Ct. R. 201(c)(3) (eff. July 1, 2014). In other words, Rule 214(c) as amended contemplates a

proportionality objection.

Federal Rule of Civil Procedure 34(b)(2)(D) provides that a responding party may object to the

“requested form for producing ESI.” That subdivision of Rule 34 further provides that if the

responding party objects to a requested form, or if no form was specified in a production request, the

producing party “must state the form or forms it intends to use” when producing the requested ESI.

Fed. R. Civ. P. 34(b)(2)(D). Similar provisions are noticeably absent from the amendments to Rule

214. It would seem, however, that a similar approach to ESI production formats is contemplated under

our Supreme Court Rules.

The Supreme Court Rules contemplate that the parties will attempt to work out their discovery

differences, which can include disputes over the format in which ESI is produced. See Ill. S. Ct. R.

201(k) (eff. October 24, 2012). The parties should attempt to resolve any dispute over the format of

the ESI production before any production occurs. If the parties cannot resolve their dispute, they

should then seek a resolution by the court. This will help to avoid arguments that the ESI was not

produced in a reasonably useable form and limit the risk of having to produce ESI a second time in a

different format.

Page 9 of 12

Federal Rule of Civil Procedure 34(b)(2)(E)(iii) provides that a party need not produce the same

ESI “in more than one form.” The supreme court may have concluded a similar provision was

unnecessary in light of Rule 201(a), which already frowns upon “[d]uplication of discovery methods

to obtain the same information.” Ill. S. Ct. R. 201(a) (eff. July 1, 2014).

The 2006 Advisory Committee Note to Federal Rule 34 explains that if a party “ordinarily

maintains the information it is producing in a way that makes it searchable by electronic means, the

information should not be produced in a form that removes or significantly degrades this feature.”

Fed. R. Civ. P. 34 advisory committee’s note (2006 amendment). We should expect Illinois to adopt a

similar approach because Rule 214(b) now requires litigants to produce information in a “reasonably

useable” form. See Ill. S. Ct. R. 214(b) (eff. July 1, 2014).

Early Attention to Ediscovery

The amendment to Illinois Supreme Court Rule 218 includes a provision that encourages parties

to use the initial case management conference to resolve issues concerning ESI. The amendment to

Rule 218(a) adds Subparagraph (10), which provides that at the initial case management conference

counsel and the court to consider “issues involving electronically stored information and its

presentation.” Ill. S. Ct. R. 218(a)(10) (eff. July 1, 2014). Thus, counsel for a party should learn about

the client’s available ESI and its information systems to be prepared to address issues relating to the

preservation and production of the client’s ESI.

Sanctions

The Illinois Supreme Court made no changes to the sanctions available under Rule 219 addressing

the loss of ESI. A comment, however, explains:

The Committee believes that the rule is sufficient to cover sanction issues as they relate to

electronic discovery. The rulings in Shimanovsky v. GMC, 181 Ill. 2d 112 (1998) and Adams

v. Bath and Body Works, 358 Ill. App. 3d 387 (1st Dist. 2005) contain detailed discussion of

sanctions for discovery violations for the loss or destruction of relevant evidence and for the

separate and distinct claim for the tort of negligent spoliation of evidence.

Ill. S. Ct. R. 219, Committee Comment (adopted May 29, 2014).

While an established body of law exists in Illinois addressing the issuance of sanctions, these

decisions involve generally the loss or destruction of tangible objects due to human intervention,

negligent or otherwise. ESI on the other hand, can be lost simply from the routine operation of a

computer, and as noted above, some forms of ESI are transitory or ephemeral in nature. Accordingly,

the issue of sanctions for the loss of ESI will present new scenarios that court and counsel will have to

carefully address. The Committee Comment to 201(c)(3), which requires a party to specifically

request the preservation of potentially burdensome categories of ESI at either the initial case

management conference or as soon thereafter as practicable, is another factor that should not be

overlooked when sanctions are sought involving the loss of ESI.

Notably, on the same day that the Illinois Rules were adopted, the Standing Committee on Rules

of Practice and Procedure in federal court approved a package of proposed amendments to the Federal

Rules, one of which deals with the loss of ESI. The proposed Rule 37(e) applies to ESI that: (1)

should have been preserved; (2) is lost because a party failed to take reasonable steps to preserve it;

and, (3) cannot be restored or replaced through additional discovery. If a court finds that another party

has been prejudiced by the loss of that ESI, it is permitted to order “measures no greater than

necessary to cure the prejudice.” More significant sanctions are permitted only upon an additional

Page 10 of 12

finding that the “party acted with the intent to deprive another party of the information’s use in the

litigation.” Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil

Procedure, 318 (2013), http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-

amendments.pdf.

Practice Tips

Rule 218 requires that counsel familiar with the case be prepared to discuss issues relating to ESI

and its preservation at the initial case management conference. Consider discussing ESI issues

whenever possible with opposing counsel prior to the initial conference with the court. Knowing an

opponent’s position on ediscovery issues prior to the conference may save time by identifying areas of

agreement or those areas not worth fighting over, and allows counsel to focus on important ediscovery

issues on which there is disagreement.

As explained below, however, this strategy requires prior consultation with the client. Endeavor

to avoid committing to a position with opposing counsel or the court on an ediscovery issue that the

client cannot meet.

Advance Reasonable Ediscovery Positions

The cost and expense of ediscovery requires you to work collaboratively with opposing counsel

more now than ever before. There will be instances where ediscovery issues cannot be resolved. When

that occurs, it is critical that you do not appear to be taking unreasonable positions on ediscovery.

Your letters to opposing counsel and discovery objections should be written with the understanding

that they will be reviewed by the court in connection with a motion to compel or for sanctions. Judges

are human and generally, do not appreciate gamesmanship, hardball or scorched-earth tactics when it

comes to discovery. The court is more likely to accept the ediscovery positions you advance if the

positions are reasonable.

Strategies for Limiting Discovery Costs

Various strategies and tools can be used to limit ediscovery costs, which counsel should discuss,

and hopefully agree upon. The first is deduplication. If an employee sends an e-mail to five

coworkers, the client should only need to produce one copy of that email, not six copies.

Deduplication tools permit the identification of exact copies of emails or documents that can limit the

volume of ESI for review and production in discovery.

Discuss and seek agreement on date ranges, and data custodians, or those persons who likely have

relevant information. Consider discussing the use of keyword searches and, where possible, seek the

input of opposing counsel on search terms to use. These filters will help limit the amount of ESI

counsel must review for privilege and work product before producing it in discovery.

Predictive coding involves a process of coding relevant and irrelevant documents in conjunction

with the use of technology, which learns to identify relevant materials from those coded documents.

Discuss use of this tool or other computer or assisted review tools to identify relevant ESI with

opposing counsel.

Seek Rule 502(d) Non-Waiver Orders

Given the volume of ESI now available, include Rule 502(d) non-waiver orders as a part of any

discovery strategy. A Rule 502(d) non-waiver order protects the parties and their counsel against a

waiver of attorney-client privilege or work product protection that can occur in discovery. Counsel

Page 11 of 12

should address the issuance of a non-waiver order pursuant to Illinois Rule of Evidence 502(d) at the

initial case management conference, if one has not already filed a motion seeking such an order.

Consider Promptly Issuing a Litigation Hold

When initially retained on a matter, consider sending the client a litigation hold letter. While the

content of the letter may vary depending on the nature of the case and the client, the letter should

explain the client’s obligation to preserve potentially relevant information. Consider including in the

letter a broad explanation of the issues in the case, the types of ESI that may have to be preserved, and

the potential ramifications of failing to preserve potentially relevant ESI. Consider also advising the

client in the letter to alert key personnel who may have relevant ESI, preferably in writing, about the

litigation hold.

Initial Client Meeting

Given the potential complexity of ediscovery issues and the client’s IT network, a best-practices

approach suggests learning as much as possible about the client’s information and email systems

before the initial case management conference. Every case and client is different so no one-size-fits all

approach exists when it comes to ediscovery. The information needed from your clients will vary from

case to case. Some information needed from the client might include:

• A description of the client’s network architecture, and an explanation of how the client’s email and

information systems operate;

• How email and ESI are retained by the client, how long they are retained, and all locations where they are

stored;

• What applications are used to create and store email and ESI;

• The volume of email and ESI in the client’s possession, and how much may be relevant to the case;

• How many computers, tablets and mobile phones, or devices may contain potentially relevant ESI or

email, where they are located, whether they are connected to a central network or server, and whether

information is stored on them that may not be found on the network;

• Whether the client has a BYOD (“bring your own device”) policy, whether employees are allowed to work

using home computers and/or personal mobile devices, whether those personal devices are linked to a

network server and have ESI that may be stored on only those devices;

• Whether the client’s email or information system has any automated features that routinely destroy emails,

or discards ESI after a specific time or once a specific volume is reached, and whether that feature can be

or has been interrupted;

• What controls or policies a client has addressing the use of or the downloading of information on portable

flash drives or other portable storage media;

• How frequently the client backs up its systems, what information is captured on backup tapes, how long

those backup tapes are retained, and whether any potentially relevant ESI may be found only on those

tapes;

• Whether the client has any legacy systems or legacy data on which potentially relevant ESI is stored;

• Whether any potentially relevant ESI is stored in the cloud, or is in the possession or under the custody or

control of a third party, and if so, the identity and location of that third party or cloud vendor;

• Whether the client has taken any steps to preserve potentially relevant email and ESI, and what steps have

been taken;

• Whether third parties and/or key personnel who likely have relevant email or ESI in their possession or

under their control have been notified about the litigation hold and are preserving information;

Page 12 of 12

• Whether the client has the internal capability to preserve, review, process, and produce its email or ESI to

counsel or an ediscovery vendor;

• Whether there are any unique features to the client’s email or information systems that may impact its

ability to preserve or produce its ESI or email;

• Whether the client is aware of any issues, problems or concerns with its systems and/or its ability to

preserve and produce its ESI or email;

• Whether the client has a document retention policy, whether that policy applies to ESI or emails, and

whether the client has complied with that policy;

• Whether the client has a data map showing where its data is stored and how that data flows across its

network; and

• Who is the contact person most knowledgeable about the client’s email and information systems and its

retention practices.

With this information, counsel should be equipped to plan for not only discussions with opposing

counsel about ediscovery issues that may arise, but also have an understanding of objections to raise in

response to discovery requests as discovery unfolds.

About the Author Steven M. Puiszis is a Partner with Hinshaw & Culbertson LLP. He serves as Hinshaw’s Deputy General Counsel, counseling his

firm’s lawyers on ethics, professional responsibility and risk management issues. He is a member of Hinshaw’s Lawyers for the

Profession Practice Group, which represents lawyers and law firms in liability and professional responsibility matters. Steve received his J.D. from Loyola University Chicago. Mr. Puiszis is a Past President of the Illinois Association of Defense Trial Counsel. He is the

Secretary Treasurer of DRI and serves on DRI’s Board of Directors. He is also a member of the Seventh Circuit’s Electronic

Discovery Pilot Program Committee.

About the IDC

The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their

practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org.

Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association.

IDC Quarterly, Volume 24, Number 3. © 2014. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.

Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, idc@iadtc.org

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HIGH-TECH EDISCOVERY DECISIONS

Predictive Coding

o Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. Feb. 24, 2012):

This Opinion appears to be the first in which a Court has approved

of the use of computer-assisted review. That does not mean

computer-assisted review must be used in all cases, or that the exact

ESI protocol approved here will be appropriate in all future cases

that utilize computer-assisted review. Nor does this Opinion endorse

any vendor, nor any particular computer-assisted review tool. What

the Bar should take away from this Opinion is that computer-assisted

review is an available tool and should be seriously considered for use

in large-data-volume cases where it may save the producing party

(or both parties) significant amounts of legal fees in document

review. Counsel no longer have to worry about being the “first” or

“guinea pig” for judicial acceptance of computer-assisted review. As

with keywords or any other technological solution to ediscovery,

counsel must design an appropriate process, including use of

available technology, with appropriate quality control testing, to

review and produce relevant ESI while adhering to Rule 1 and Rule

26(b)(2)(C) proportionality. Computer-assisted review now can be

considered judicially-approved for use in appropriate cases. Id. at

193.

o Global Aerospace Inc. v. Landow Aviation, L.P., No. 61040, 2012 WL 1431215, (VA

Cir. Ct. Apr. 23, 2012) (ordering the use of predictive coding over plaintiff's objection in

accordance with defendant's proposed protocol achieving a 75% recall or retrieval rate).

o Gordon v. Kaleida Health, 2013 WL 2250579 (W.D.N.Y. May 21, 2013) (expressing

“dissatisfaction with the parties’ lack of progress toward resolving issues related to

completion of review and production of defendants’ emails using the keyword search

method, and pointed to the availability of predictive coding, a computer assisted ESI

reviewing and production method directing the parties' attention to the recent decision

of Magistrate Judge Peck in [Da Silva Moore].”).

o Hinterberger v. Catholic Health System, Inc, 2013 WL 2250603 (W.D.N.Y. May 21,

2013)(denying without prejudice plaintiffs’ motion to compel meet and confer where

defendants indicated they were prepared to do so with plaintiffs and any consultants

who are not disqualified). Plaintiffs claimed in Hinterberger that they were entitled to

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review the “seed set” documents and defendants objected arguing DaSilva Moore does

not require plaintiffs be given access to the seed-set documents. Id. at *2. The court did

not address the seed set issue and refused plaintiffs’ request to remind defendants that

upon further motion, the court could find the defendants’ search methodology to be

unreasonable and non-compliant with Rule 34’s obligations.

o Nat'l Day Laborers Organizing Network v. U.S. Immigration & Customs Enforcement

Agency, 877 F. Supp. 2d 87, 109-12 (S.D.N.Y. 2012)(“[P]arties can and frequently should

rely on latent semantic indexing, statistical probability methods, and machine learning

tools . . . known as 'computer assisted' or 'predictive' coding”). The court allowed the

parties to agree on predictive coding techniques and other more innovative ways to

search, but advised that plaintiffs need to be reasonable in their demands, and noting

that the court will supervise the process to avoid inadequate or wasteful searches

o Progressive Cas. Ins. Co. v. Delaney, 2014 WL 3563467, at *8 (D.Nev. July 18, 2014)

(stating, with citations to articles, that predictive coding has proved to be an accurate

way to comply with a discovery request for ESI and that studies show it is more

accurate than human review or keyword searches). However, the court declined to

allow the use of predictive coding where the record lacked the necessary transparency

and cooperation among counsel in the review and production of ESI responsive to the

discovery request. Id. at *10-12.

o EORHB, Inc. v. HOA Holdings LLC, 2012 WL 4896670 (Del. Ch. Oct. 15, 2012)

(ordering that unless good cause could be shown the parties “shall . . . conduct

document review with the assistance of predictive coding”).

o In re Biomet M2A Magnum Hip Implant Products Liability Litigation, 2013 WL

1729682 (N.D. Ind. Apr. 18, 2013) (refusing to force defendant to conduct predictive

coding to produce additional relevant documents on all of the defendant's data after the

defendant already limited the scope of the data using deduplication and standard

keyword searches unless plaintiffs paid for such additional discovery).

o In re Bridgepoint Educ., Inc., 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)(approving

defendants' method of using linear screening with the aid of search terms to identify

responsive documents with regard to the emails already reviewed instead of making

them run the documents through the predictive coding software as the plaintiffs

requested). The defendants argued that their choice of review method for the

documents in question was reasonable and that they should not be required to run the

documents that have already been screened through the predictive coding process,

arguing that doing so would negatively impact the reliability of the predictive coding

process.

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o Bridgestone Americas, Inc. v. IBM Corp., 2014 WL 4923014 (M.D. Tenn., July 22,

2014)(noting that the use of predictive coding is a “judgment call” and given that there

were millions of documents to be reviewed there was “no, single, simple correct

solution”). The court in Bridgestone permitted the use of predictive coding on a data set

after it had first been culled through the use of keyword search terms after the plaintiff

agreed to provide the “seed documents” to the defendant. The court recognized that it

was allowing plaintiff to “switch horses in midstream,” and therefore explained

openness and transparency in what plaintiff was doing and how was a critical

consideration.

o Gabriel Technologies Corp., Qualcomm Inc., No. 08cv1992 AJB, 2013 WL 410103

(S.D. Cal. Feb. 1, 2013) (addressing a request for the recovery of approximately $2.8

million in costs attributable only to "computer-assisted, algorithm-driven document

review" and finding counsel's "decision to undertake a more efficient and less time-

consuming method of document review to be reasonable under the circumstances" and

approving the award).

o Fed. Hous. Fin. Agency v. HSBC N. Am. Holdings Inc., 2014 WL 584300 (S.D.N.Y.

Feb. 14, 2014)(noting that at an early stage of the discovery process JPMorgan Chase,

over the objection of another party, was allowed to produce its documents through the

use of predictive coding). The court noted that the literature that it reviewed at that time

indicated that predictive coding had a better track record in the production of

responsive documents than human review.

o F.D.I.C. v. Bowden, 2014 WL 2548137, at *13 (S.D.Ga. June 6, 2014) (directing that

the parties consider the use of predictive coding).

o In re Actos (Pioglitazone) Products Liab. Litig., 2012 WL 3899669 at *4-*8 (W.D. La.

July 27, 2012) (case management order outlining the protocol for predictive coding

review process for determining relevant, non-privileged ESI).

o Arnett v. Bank of Am., N.A., 2014 WL 4672458 at *9 (D.Or. Sept. 18, 2014) (granting

final approval of a class settlement, the court discussed the extent of the discovery

completed and noted that class counsel used predictive coding as one part of its

document review efforts).

o Chevron Corp. v. Donziger, 2013 WL 1087236 (S.D.N.Y. Mar. 15, 2013) adhered to

on reconsideration, 2013 WL 1975439 (S.D.N.Y. May 14, 2013)(describing predictive

coding as an automated method that credible sources say has been demonstrated to

result in more accurate searches at a fraction of the cost of human reviewers).

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o Dynamo Holdings Ltd. P’ship v. C.I.R., 2014 WL 4636526 (T.C. Sept. 17, 2014)(tax

court held the IRS was entitled to compel production of ESI held by entities, but entities

would be allowed to use “predictive coding” to identify responsive documents and

those that contained privileged information). The court held that “predictive coding”

was an expedited and efficient form of computer-assisted review, widely accepted for

limiting “e-discovery” to relevant documents, that would allow parties to avoid time

and costs associated with traditional, manual review of large volume of documents,

and, in this case, parties would agree on search criteria to reduce the pool of documents

to a manageable number to review.

o Harris v. Subcontracting Concepts, LLC, 2013 WL 951336 (N.D.N.Y. Mar. 11,

2013)(holding there was no "manifest injustice" demonstrated and that defendant was

not subjected to an "overwhelming and incomprehensible burden" even though it had

to produce large reams of documents, reasoning that with the advent of software,

predictive coding, spreadsheets, and similar advances, the time and cost to produce

large reams of documents can be dramatically reduced).

o In re Domestic Drywall Antitrust Litig., 300 F.R.D. 228 (E.D. Pa. 2014)(reasoning

“[a]lthough ESI is often condemned as overly expensive and unproductive, there are

some cases in which its benefits vastly outweigh its costs. This case is likely such a case.

The issues are important, the financial stakes of both discovery and damages are high,

and there are important reasons of public policy justifying broad discovery in antitrust

cases, regardless of the result. Some of the landmark antitrust cases of the last 50 years

have resulted in changes in normative corporate behavior. Given contemporary tools of

discovery, ESI plays an important part, and must be considered in ruling on discovery

disputes.")

The court found that in this case, the agreement of counsel for 1,100 search terms and

the millions of documents produced as a result can only be reviewed, and the relevant

information efficiently extracted by the use of computer-based programs, stating

"[t]here is no question that the availability of ESI has promoted a beneficial

improvement in the productivity of lawyers." The court explained the benefits of ESI:

Although much ink and more dollars have been spent bemoaning the

excesses and expenses of ESI in the post-computer litigation world, this

is a case where the parties can benefit from ESI. For example, Plaintiffs

can easily use ESI tools to match dates and places of trade meeting with

names of attendees. The availability of this technology is often

improved by third-party vendors, who have their own sophisticated

and proprietary methodologies for helping litigants deal with ESI,

perhaps at greater cost, but also at greater efficiency and with more

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beneficial results. Vendors of ESI services have become an important

part of the litigation landscape. Id.

Charles Yablon & Nick Landsman-Roos, Predictive Coding: Emerging Questions and Concerns,

64 S.C. L. REV. 633 (2013).

Maura A. Grossman & Gordon V. Cormack, Comments on "The Implications of Rule 26(g) on

the Use of Technology-Assisted Review," 7 FED. CTS. L. REV. 286 (2014).

Admission of Spoliation Evidence and Instruction at Trial

o In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 2872299 (W.D.La.,

June 23, 2014) (permitting the jury to hear evidence concerning defendants failure to

preserve and argument bearing on the good faith or bad faith of defendants conduct as

a sanction) The jury awarded $9 billion dollars in punitive damages. Subsequently

post trial relief was denied because “even if there were evidence [that the jury based its

punitive award on the spoliation evidence] [t]he jury was free to make its own

inferences about the nature, and the scope of the data [defendant Takeda] admitted was

destroyed or otherwise unavailable.” In re Actos (Pioglitazone) Products Liability

Litigation, 2014 WL 4364832 at *45-46 (W.D.La Sept. 2, 2014).

Christou v. Beatport, LLC, 2013 WL 248058 at *14 (D.Colo. Jan. 23, 2013) (admitting

evidence of a party's failure to follow a litigation hold notice as a sanction when the

party had negligently or accidentally lost his cell phone, with all text messages, but

where no evidence existed to suggested that relevant text messages actually existed);

but see Lakes Gas Co. v. Clark Oil Trading Co., 875 F. Supp 2d 1289 (D. Kan. 2012)

(denying plaintiff's summary judgment motion as a sanction for destroying instant

messages and emails, where there was no showing of bad faith, and the relevance of the

instant messages and emails was only speculative).

Herrman v. Rain Link, Inc., 2013 WL 4028759 (D.Kan. Aug. 7, 2013) Despite finding no

intent and only negligent conduct resulting in the loss of ESI and questioning whether

any prejudice had resulted from the loss of ESI, the court ruled:

Apart from spoliation sanctions, the judge who will preside over

the trial of this case could find that admission of some evidence

concerning spoliation of evidence might be helpful for

determining the probative value of the documents referenced in

this order—depending when and how these are placed into

evidence. In any event, issues concerning admission and exclusion

of evidence—either as a spoliation sanction or otherwise—are best

left to the judge presiding over the trial.

6 130764727v1 9153

Discovery/Preservaton of Text Messages on Mobile Devices

o Ewald v. Royal Norwegian Embassy, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

(holding plaintiff entitled to discovery of text and voice messages contained on the

company-issued mobile phone of the defendant's employee).

o In In Re Pradaxa (Dabigatron Exterilate) Prods. Liab. Litig., 2013 WL 6486921 (S.D.

Ill. Dec. 9, 2013), (finding there was a duty to suspend auto-delete systems that operate

on text messages and imposing nearly $1 million in sanctions for having failed to do

soon company-issued smart phones, among other things). The court found that

plaintiffs had expressly requested the text messages by asking for text messages in the

boilerplate definition of "document," but the defendants failed to halt the auto-

programmed delete function for text messages once a litigation hold was in place.

o PTSI Inc. v. Haley, 71 A.3d 304, 317 (Pa. Super. Ct. 2013) (denying spoliation

motion where the defendants "routinely deleted text messages, often on a daily basis, so

as not to unduly encumber their iPhones"). The court found that, because of the

presumed "volume of text messages that are frequently exchanged by cell phone users

and given the limited amount of storage on cell phones, it would be very difficult, if not

impossible, to save all text messages and to continue to use the phone for messaging."

The court further reasoned that "[h]ere, there has been no showing that the innocent

clean-up of personal electronic devices to allow them to function was unusual,

unreasonable or improper under the circumstances."

BYOD- Preservation/Discovery :

o Standards vary by jurisdiction, but courts have imposed preservation and

production obligations on employees' mobile devices, where those devices were used

for business purposes. See, e.g., In Re Pradaxa, 2013 WL 6486921, at *18.

o The reverse is also true. Where employees' mobile devices were not used for

business purposes, some courts have found that they are not in the "possession,

custody, or control" of the employer. In Cotton v. Costco Wholesale Corp., 2013 WL

3819975 (D. Kan. July 24, 2013) (holding because the plaintiff could not show either that

the personal phones under dispute were issued by Costco or that the employees used

their personal cell phones for any work purpose, the phones were not within Costco's

"possession; custody or control").

o Han v. Futurewei Technologies, Inc., 2011 WL 4344301 (S.D. Cal. Sept. 15, 2011)

(denying a motion for discovery of personal laptops, after files had been deleted from a

company-issued laptop, where the personal laptops were not used for business

purposes).

7 130764727v1 9153

Rule 502:

o Rule 502(d) states: "A federal court may order that the privilege or protection is

not waived by disclosure connected with the litigation pending before the court – in

which event the disclosure is also not a waiver in any other federal or state proceeding."

o S2 Automation LLC v. Micron Technology, Inc., 2012 WL 3150387 (D.N.M. July 23,

2012) (approving a proposed FRE 502(d) non-waiver and clawback order early in the

litigation stating such orders "are staples of modern and complex commercial

litigation").

o Rajala v. McGuire Woods LLP, 2010 WL 2949582 (D. Kan, July 22, 2010 (approving

a proposed order early in the litigation that would prohibit a finding of waiver based on

the inadvertent production of privileged documents during the litigation, and the court

approved that order).

o In United States Home Corp. v. Settlers Crossing, LLC, 2012 WL 302511 (D. Md. July

23, 2012) (applying FRE 502(b), rather than the parties FRE 502(d) non-waiver order,

because the non-waiver order "silent as to either the parties' precautionary or post-

production responsibilities to avoid waiver").

o Maxtena, Inc. v. Marks, 289 F.R.D. 427 (D. Md. 2012) (applying Rule 502(b) despite

the existence of a court order that provided for a general non-waiver of privilege for

inadvertent disclosure because that court order failed to define "inadvertence" or to

offer detailed instructions regarding post-production responsibilities).

o Mt. Hawley Ins. Co. v. Felman Prod., Inc. 271 F.R.D. 125, 130, 133 (S.D. W.Va 2010)

(following the parties' agreement regarding post-production responsibilities, but

reverting to Rule 502(b)(2) regarding required precautionary measures because the

agreement was silent on that prong).

o Luna Gaming-San Diego, LLC v. Dorsey & Whitney, LLP, 2010 WL 275083, at *4

(S.D. Cal. Jan 13, 2010) (applying Rule 502(b) despite the existence of a court order that

provided for a general non-waiver of privilege for inadvertent disclosure because that

court order failed to offer detailed instructions regarding post-production

responsibilities).

o United States v. Sensient Colors, Inc., 2009 WL 2905474, at *2 (D.N.J. Sept. 9, 2009)

(applying Rule 502(b) despite a general non-waiver agreement, in part, because

"[n]owhere in the [agreement] does it mention that the parties are excused f[ro]m the

requirements of Federal Rule of Evidence 502(b)").

8 130764727v1 9153

o Brookfield Asset Management, Inc. v. AIG Financial Products, Corp., 2013 WL 142503

(S.D.N.Y. Jan. 7, 2013)(involving the production of redacted documents, but the

redacted privileged information was viewable in the document's metadata). The court

held that this was not sufficient to waive the privilege as to the redacted information,

but in any case, issued an FRE 502(d) order providing that "Defendants' production of

any documents in this proceeding shall not, for the purposes of this proceeding or any

other proceeding in any other court, constitute a waiver by Defendants of any privilege

applicable to those documents, including the attorney-client privilege."

o See also Carolina Casualty Ins. Co. v. Sharp, 2013 WL 1002217 (N.D.Ohio. Mar. 1,

2013) (issuing and enforcing an FRE 502(d) order after the inadvertent production of

privileged documents).

Ediscovery Vendors:

o Sekisui American Corp. v. Hart, ___ F.Supp.2d ___, 2013 WL 4116322, *6 (S.D.N.Y.

Aug. 15, 2013) (involving sanctions where litigation hold instructions were not

communicated to an ediscovery vendor and information was allegedly lost).

Litigation Holds – Examples of Conflicting Standards:

o Pension Committee of University of Montreal Pension Plan v. Banc of America

Securities, LLC, 685 F.Supp. 2d 45, 464-65 (S.D.N.Y. 2010) (holding that the failure to

issue a written preservation notice is gross negligence per se).

o However, see Curcio v. Roosevelt Union Free Sch. Dist., 283 F.R.D. 102, 111

(E.D.N.Y. 2012) ("[A] blanket conclusion of gross negligence elevates form over

substance.").

o Meyer Corp. U.S. v. Alfay Designs, Inc., 2012 WL 3536987, at *7 (E.D.N.Y. Aug. 13,

2012) (denying motion to sanction party for failure to produce evidence of written

preservation notice).

o YCB Int'l, Inc. v. UCF Trading Co., 2012 WL 3069683, at *10 (N.D. Ill. June 12, 2012)

("'[A party] need not have an official written policy regarding the preservation of

documents related to litigation to avoid sanctions'"). See also Chin v. Port Authority of

New York & New Jersey, 685 F.3d 135 (2d Cir. 2012).

Oral Litigation Holds Inadequate:

o Scentsy, Inc. v. B.R. Chase, LLC, 2012 WL at *18 (D. Idaho Oct. 2, 2012),

("[g]enerally . . . orally requesting certain employees to preserve relevant documents . . .

9 130764727v1 9153

is completely inadequate. It is very risky – to such an extent that it borders on

recklessness"). See also Sloan Valve Co. v. Zurn Industries, Inc., 2012 WL 1886353, at *12

(N.D. Ill. May 23, 2012).

o United States ex rel. Baker v. Cmty. Health Sys., 2012 WL 5387069, at *1 (D.N.M. Oct.

3, 2013), defendant in a False Claims Act actions brought a motion for sanctions against

the government plaintiff for failing to timely issue a preservation notice. The court

rejected the government's argument that the duty to preserve was triggered only when

the government intervened to pursue litigation against defendant, and instead held that

the duty to preserve was triggered when the government investigated defendant for

alleged manipulation of the Medicaid funding program and engaged in settlement

negotiations with it months before the government intervened in the case.

Automatic Deletion Policy:

o Pillay v. Millard Refrigerated Servs., 2013 WL 2251727, at *5 (N.D. Ill. May 22, 2013)

(allowing adverse inference instruction following automatic deletion of computer data

if jury found deletion was intentional or reckless and in bad faith).

o Operation of the corporate technology policy earned sanctions for the defendant,

EEOC v. Ventura Corp., 2013 l 550550 (D.P.R. Feb. 12, 2013) (involving a software

migration that caused the loss of emails and an office restructuring caused further

document loss, after a duty to preserved had arisen in connection with reasonably

anticipated litigation). The court ordered preclusion of certain defense evidence and an

adverse inference instruction.

Incomplete Data Retention:

o In re Pfizer Inc. Secs. Litig., 288 F.R.D. 297 (S.D.N.Y. 2013), (involving a wide-

reaching system to retain and protect important information subject to a litigation hold,

but failing to extend its litigation hold to certain categories of information – including

records related to internal chatroom communications and other centralized databases).

The court criticized defendant's efforts, and but for the plaintiff's failure to show the

relevant of any potentially spoliated data, saved the defendant from sanctions.

o Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, 2013 WL 6159177, *6-7 (S.D. Cal.

Nov. 25, 2013) (sanctioning defendant because its governance system did not

affirmatively prevent documents subject to a litigation hold from being deleted, and

additionally lacked "a back-up system to prevent the destruction of documents").

o Monetary sanctions in the form of fees and costs incurred for discovering the

failure and litigating the motion, and nothing more. See, e.g., In re Delta/Air Tran

10 130764727v1 9153

Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1358 (N.D. Ga. 2012) (noting the

"general lack of diligence" demonstrated by defendant but awarding only reasonable

attorney fees for defendant produced 60,000 missing responsive documents and hard

drivers that were not uploaded into the search platform).

o Courts have continued to issue large, punitive monetary sanctions. In Multifeeder

Tech., Inc. v. British Confectionery Co. Ltd., 2012 WL 4135848, at *9 (D. Minn. Sept. 18,

2012) (imposing $600,000 in expenses and attorneys' fees and $25,000 to be paid to the

court for evidence spoliation just before computer imaging).

o Rosenthal Collins Grp., LLC v. Trading Techs. Int'l, Inc., 2011 WL 722467 (N.D. Ill.

Feb. 23, 2011) (imposing a $1 million monetary penalty and case-terminating sanctions

describing plaintiff's agent as having engaged in "egregious conduct" such as

deliberately modifying and destroying significant evidence).

o Courts have begun reserving a right to impose an adverse inference instruction

following the entry of evidence at trial as a means of ensuring that the sanction for

spoliation remedies the offense. Océ North America, Inc. v. MCS Services, Inc., 2011 WL

6130542 (D. Md. Dec. 7, 2011) (explaining it was too early in the litigation to grant an

adverse instruction, as it was "unclear what type of evidence the parties plan to present

to the jury and what the implications of the lack of data on the[] two [destroyed] laptops

may be in light of the fact that there are at least twenty other laptops containing Océ

data).

o Scentsy, Inc. v. B.R. Chase, LLC, 2012 WL 4523112 (D. Utah Oct. 2, 20-12) (allowing

additional depositions to determine whether spoliation had occurred and explaining if

the testimony revealed spoliation, the court pledged to "consider giving an adverse

inference instruction at trial or dismissing some or all of [plaintiff's] claims").

o The level of culpability required to grant an adverse inference remains an open

question. Some courts require bad faith before imposing an adverse inference sanction.

McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992, at *9 (D. Colo. May 2, 2011); Bozic v.

City of Washington, 2012 WL 6050610, at *10 (W.D. Pa Dec. 5, 2012).

o Other courts are split as to whether negligence or gross negligence is required.

GenOn Mid-Atl., LLC v. Stone & Webster, Inc., 2012 WL 1849101 (S.D.N.Y. May 21, 2012)

(imposing adverse inference sanction where party was "at least negligent").

o Siani v. State Univ. of New York at Farmingdale, 2011 WL 2580361 (E.D.N.Y. June

28, 2011) (denying a request for an adverse inference because the spoliation was merely

negligent rather than grossly negligent).

11 130764727v1 9153

o Patel v. Havana Bar, Rest. & Catering, 2011 WL 60929983 (E.D. Pa. Dec. 5, 2011)

("[E]ven 'negligent destruction of relevant evidence can be sufficient to give rise to the

spoliation inference.'").

o Some courts reframe the question in terms of whether the destruction was willful

or inadvertent. Compare Melendres v. Arpaio, 2011 WL 674709 (D. Ariz. Dec. 23, 2011)

(granting adverse inference because the party intentionally shredded the evidence

rather than lost it, thought did not necessarily "intend to deprive an opposing party of

relevant evidence").

o Hudson v. AIH Receivable Mgmt., 2012 WL 1194329, at *6 (D. Kan. Mar. 14, 2012)

("Defendant's actions were not willful. Rather, [the] destruction of email . . . was the

result of a misunderstanding").

o Adverse inference instruction can be tantamount to a case-terminating sanction.

E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc., 803 F. Supp. 2d 469 (E.D. Va. 2011)

(denying plaintiff's request for default judgment as a sanction where certain of

defendant's executives and employees intentionally had deleted relevant files and

emails, because plaintiff had not "suffered the degree of prejudice required under the

case law to enter default judgment" – among other things, "an overwhelming majority"

of the deleted emails had been recovered from backup tapes and produced). After

finding case-terminating sanctions inappropriate, and despite the apparent lack of

substantial prejudice, the court nevertheless decided to grant an adverse inference jury

instruction, ostensibly perceiving it to be a much lesser sanction.

Case Dispositive Sanctions:

o For case-ending sanctions, courts have generally required serious discovery

misconduct that greatly prejudiced the moving party. Bad faith is required in addition

to harm to the aggrieved party's case that could not be cured with monetary sanctions

or an adverse inference. Pringle v. Adams, 2012 WL 1103939 (C.D. Cal. Mar. 30, 2012)

(awarding dismissal as sanction against a plaintiff, who, despite being aware of the

duty to preserve, had disposed of hard drives containing potentially relevant evidence).

o Taylor v. Mitre Corp., 2012 WL 5473573, at *2-*3 (E.D. Va. Nov. 8, 2012) (granting

default judgment and monetary sanctions against plaintiff for "egregious" conduct after

plaintiff destroyed an old computer containing relevant files with a sledge hammer and

installed and ran an "Evidence Eliminator" program to destroy evidence on a new

computer before a court-ordered forensic inspection could take place).

12 130764727v1 9153

o In re Pradaxa Prods. Liab. Litig., 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013). After

repeatedly missing discovery deadlines, issues that started small ballooned into bigger

problems, leading to significant sanctions in the nationwide multi-district litigation over

the pharmaceutical Pradaxa. Nearly $1 million in sanctions was awarded against the

drug maker for what the court characterized as "astounding" and "egregious" discovery

violations in bad faith – but without an explicit finding that any evidence had been

destroyed. The problems described by the court were: (1) failing to timely identify a

key custodian of relevant evidence; (2) failing to impose a broad enough litigation hold

on all relevant sales representatives; (3) failing to produce documents (through a

vendor) from all parts of their computer networks; and failing to preserve text messages

on relevant employees' phones; and (4) failing to adhere to discovery orders. After

issuing a $29,000 fine, the court several months later addressed the "cumulative effect"

of alleged violations, stating that the defendants' continuing conduct suggested "a failed

strategy regarding production evasion." In addition to ordering reimbursement of

plaintiffs' costs and fees in bringing the sanctions motions, the court ordered $931,500 in

sanctions (apparently payable to the court) to send a "forceful message" to the

defendants. The defendants have appealed the decision. Letting ediscovery mistakes

fester swell into large sanctions awards.

o Sanctions against plaintiffs in Moore v. CITGO Refining & Chemicals Co., 735 F.3d

309, 316-17 (5th Cir. 2013) (affirming a lower court's dismissal of an employment class

action due to the plaintiffs' failure to preserve ESI). The appellate court (over a dissent)

increased the district court's cost award to the defendant, finding that the comparative

wealth of the parties was an improper basis to reduce the cost award.

o Branhaven, LLC v. Beeftek, Inc., 288 F.R.D. 386, 388-89 (D. Md. 2013) (imposing

attorneys' fees jointly and severally against the plaintiff and its counsel after plaintiff's

counsel certified under Fed. R. Civ. P. 26(g) that the lawyer had received access to all

relevant client documents – despite the lack of such access, particularly to email

servers). The court faulted the plaintiff and its counsel for delaying in retaining an e-

discovery vendor and for delaying in undertaking the work necessary to provide a

reasonable response to the defendant's discovery requests.

o Sanctions declined where evidence was destroyed in good faith pursuant to a

defensible deletion policy. Kostic v. Texas A&M Univ., No. 3:10-cv-2265-M 2013 WL

3356263 (N.D. Tex. July 3, 2013) ("[C]ourts typically 'do not draw an inference of bad

faith when documents are destroyed under a routine policy'").

o Woodard v. Ford Motor Co., No. 1:11-cv-3092-CL, 2013 WL 3024828 (D. Ore. June

13, 2013) (noting that "sanctions are not appropriate" where a party consistently and in

good faith destroys documents in accordance with an internal policy).

13 130764727v1 9153

o Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 623 (2d Cir. 1991) ("A potential for

conflict is inherent in a sanctions motion that is directed against both a client and a

lawyer, even when, as here, the two agree that an action was fully warranted in fact and

law. (citation omitted). A sanctions motion attacking the factual basis for the suit will

most inevitably put the two in conflict, placing in question the attorney's right to rely on

his client's representations and the client's right to rely on his lawyer's advice").

Steven M. Puiszis

Hinshaw & Culbertson LLP

222 N. LaSalle St. Suite 300

Chicago, Illinois 60601-1081

312 704-3243 (direct)

January 6, 2015

FINAL Page 1 of 54

E-Discovery in Federal and State Courts: A Primer Univ. of Cincinnati College of Law

Spring 2015

Thomas Y. Allman1

(1) Introduction 2

(2) E-Discovery Planning 4

(3) Preservation 7

(3.1) Trigger 8

(3.2) Litigation Holds /Breach 9

(3.3) Spoliation Sanctions 13

(3.4) Rule 37(e) 18

(4) Production 21

(4.1) Scope of Discovery/Proportionality 21

(4.2) Inaccessible ESI 24

(4.3) Direct Access/Privacy 26

(4.4) Collection, Search & Review 28

(4.5) Discovery on Discovery 31

(4.6) Form of Production 32

(4.7) Privilege & Work Product 34

(4.8) Cost Shifting 37

(4.9) Discovery Sanctions 40

(5) Evidentiary Issues 44

(6) Counsel Responsibility 46

II. Appendix (State by State Summaries) 50

This Memorandum describes the current state of civil e-discovery practice in

federal and state courts. It includes, where relevant, references to the provisions which

rulemaking authorities have made to adjust to the unique issues involved. While e-

discovery issues abound in the criminal context, this Memorandum focuses on civil

litigation.

A fairly comprehensive set of amendments focusing on e-discovery became

effective in the Federal Courts in December, 2006 (the “2006 Amendments”). Currently,

a second round of possible Federal amendments reflecting lessons from the past decade is

pending before the Supreme Court.2

1 ©Thomas Y. Allman. The author, a former General Counsel, is Chair Emeritus of Working Group 1 of

the Sedona Conference® and is an Adjunct Professor at the University of Cincinnati College Of Law. 2 See generally Thomas Y. Allman, The Civil Rules Package As Approved By the Judicial Conference

(September, 2014), 2 (hereinafter “Allman, The Civil Rules Package, ___.”); copy at

http://www.law.georgetown.edu/cle/materials/eDiscovery/2014/thusmorndocs/ALLMANCommentsonRule

Package.pdf. The full text and Committee Notes are found in the June 2014 RULES COMMITTEE REPORT,

copy at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2014-add.pdf (hereinafter

cited as “June 2014 RULES REPORT, at B-___” or simply “B-__”).

January 6, 2015

FINAL Page 2 of 54

As of this writing, in addition to the Federal Courts, thirty-four states3 have

adopted some form of state-wide civil e-discovery amendments while six others have

taken only limited action4 and ten have refrained from any activity,

5 as has the District of

Columbia. At least a third of the Federal Districts (and some state courts) have also

enacted local rules or district-wide protocols or guidelines related to e-discovery.

In addition, the Sedona Conference® has published and updated the influential

Sedona Principles6 regarding e-discovery, as well as specialized commentaries on

specific topics. Reference is made, as appropriate, to those materials in this

Memorandum.

I. Introduction

Discovery of information contained in electronic form can be quite different from

that of hard copy documents or tangible objects.

Electronic information is, for example, often “retained in exponentially greater

volume than hard-copy documents,” is “dynamic, rather than static” and may be

“incomprehensible” when separated from the system that created it.7 In Columbia

Pictures v. Bunnell,8 for example, information temporarily residing in Random Access

Memory (RAM) was held to be discoverable since the Rule “requires no greater degree

of permanency from a medium than that which makes obtaining the data possible.”9

Moreover, because of advances in computer science, it may be easily manipulated

and arranged (“searched”) in ways neither imagined nor possible with hard copy.

In former times, discovery was often accomplished by permitting requesting

parties to rummage around in boxes of documents collected from relevant custodians and

file rooms by producing parties, typically without having been thoroughly reviewed.

Representatives of the requesting parties, generally younger lawyers or paralegals,

examined the boxes, designated documents to be copied and relied upon the producing

3 Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa,

Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New

Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas,

Utah, Vermont, Virginia, Wisconsin and Wyoming. 4 Idaho, Nebraska, New Hampshire, New York, Oregon and Pennsylvania have taken only limited rule-

making action explicitly relating to e-discovery 5Colorado, Georgia, Hawaii, Kentucky, Missouri, Nevada, Rhode Island, South Dakota, Washington and

West Virginia have taken little or no action relating to ESI. 6 See the Second Edition (2007) of the Sedona Principles, at

file:///C:/Users/PC/Downloads/TSC_PRINCP_2nd_ed_607%20(1).pdf. 7 Report of the Civil Rules Advisory Committee, 234 F.R.D. 219, 307 (2006) .

8 245 F.R.D. 443, 447 (C.D. Cal. August 24, 2007)(the Rules does not exclude “information written in a

particular medium simply because that medium stores information only temporarily”). 9 Id., 448.

January 6, 2015

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party to produce them.10

The requesting party typically reimbursed the (usually

nominal) copying costs and the role of trial counsel in overseeing production was

acknowledged.11

When electronic information was sought, it was treated as a form of “documents,”

as required by the 1970 amendments to Rule 34.12

It consisted primarily of information

extracted from databases maintained on main frame computers. Email, text messages and

other forms of electronic information lay in the future, as did the use of desktop or laptop

computers and other distributed devices.

However, by the late 1990s, an explosive growth in use of email and other user-

generated (“unstructured”) electronic content led to changes in the discovery paradigm.

The process of “inspection” of documents was gradually replaced by production of

information selected by the producing party after some form of privilege review.13

Hard

copy documents were produced separately or converted into electronic form so that they,

as well as ESI, could studied on review platforms.

Moreover, the seminal decisions in Zubulake IV and V emphasized the importance

of preservation of ESI in relation to production, bringing a focus on imperfections in pre-

litigation practices and espousing the view that the use of a formal “litigation hold” was

an essential element whose absence was sanctionable.14

In 2006, after several years of discussion, and spurred in part by advocacy by

commentatorsd like the author,15

the Supreme Court amended Committee Rule 34 and

Rule 45 to formally acknowledge discovery of “electronically stored information.”16

A

modest presumption against production from inaccessible sources of ESI was also added,

attempts at spelling out the default “form or forms” of production.

10

Anderson Living Trust v. WPX Energy Production, 298 F.R.D. 514, 521-527 (D. Mass. Sept. 17, 2014). 11

Bratka v. Anheuser-Busch, 164 F.R.D. 448, 461 (S.D. Ohio 1995)(“trial counsel must exercise some

degree of oversight to ensure that their client’s employees are acting competently, diligently and

ethically”). 12

See Federal Amendments (1970), 48 F.R.D. 487, 525-527 (1969-1970)(expanding definition of

documents to include “data compilations from which information can be obtained, translated, if necessary,

by the respondent through detection devices into reasonably usable form”). 13

One of the pending Federal Amendments (2015) would (belatedly) expand Rule 34(b)(2)(B) to “reflect

the common practice of producing copies of documents or [ESI] rather than simply permitting inspection.”

June 2014 RULES REPORT, at B-54. 14

Zubulake IV and V brought a subtle rigidity to the preservation of email in contrast to that of Concord

Board v. Brunswick, 1997 WL 33352759, at *8 (E.D. Ark. 1997)(“[t]he outcome of this matter will be

decided on economics, not upon the contents of a few e-mails [and] even if the deleted emails were relevant

to Plaintiff’s case [they] have not suffered the requisite prejudice necessary for the giving of an adverse

inference instruction”). 15

Thomas Y. Allman, the Need for Federal Standards Regarding Electronic Discovery, 68 DEF. COUNS. J.

206 (2001). 16

Rule 34 was also amended to acknowledge the right to “test or sample” ESI in the possession or control

of a party or non-party under certain circumstances.

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An attempt was also made to provide relief from the imposition of sanctions for

inadvertent failures to preserve, given the expense of over-preservation, by adopting

(now) Rule 37(e), at least for routine, good faith losses of ESI. In 2008, Congress

addressed the need for more uniformity on privilege waiver issues by adopting Fed. Rule

Evid. 502, which reinforced the 2006 amendments to Rules 16 and 26(f) designed to

encourage early discussion of e-discovery issues.

Since then, individual and enterprise storage of ESI has expanded to include

storage “in the cloud,” coupled with the explosive growth in social media, with attendant

issues.17

Equally important, however, advances in computer analytics has opened up a

world of more efficient practices in culling, search and review of ESI and helped address

some of the cost issues in larger productions.

Currently, the second round of potential Federal amendments includes proposals

to include proportionality in Rule 26(b)(1) and to adopt a new Rule 37(e) addressing the

duty to preserve and cabining harsh sanctions for its violation by a uniform national

standard.18

If adopted by the Supreme Court, and if Congress does not adopt legislation

to reject, modify, or defer them, the amendments will become effective in December,

2015.

(2) E-Discovery Planning

Party-managed e-discovery, enabled by cooperative behavior and active judicial

case management, is the preferred form of handling electronic discovery in both federal

and state courts. Many districts (or individual judges) have adopted local rules, forms,

model agreements, or protocols to guide litigants to identify and resolve e-discovery

issues.19

The Northern District of California, for example, consistent with a Standing

Order governing case management,20

has issued ESI Guidelines, a Checklist for the Rule

26(f) Conference and a Model Stipulated Order.21

Early Discussion

Rule 26(f), as amended in 2006, requires parties to meet and confer regarding

“any issues about preserving discoverable information” as well as selected e-discovery

topics to encourage agreements and help reduce later disagreements. These discussions

17

See, e.g., Cindy Pham, E-Discovery in the Cloud Era: What’s a Litigant to Do?, 5 HASTING SCI. & TECH.

L.J. 139 (2013). 18

As noted above, the relevant text and Committee Notes are found in the June 2014 RULES COMMITTEE

REPORT (hereinafter cited as “June 2014 RULES REPORT, at B-___” or simply “B-__”). 19

Links to many of the e-discovery initiatives may be found at http://tinyurl.com/LNw12-cp02. 20

Standing Order, Contents of Joint Case Management Statement, N.D. Cal (Revised Nov. 27 2012). 21

N.D. Cal., Guidelines for ESI Discovery, copy at copy at

http://www.cand.uscourts.gov/eDiscoveryGuidelines.

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often take place against a backdrop of policies and practices established to govern the

retention and use of ESI.22

Parties are required by amended Rule 26(f) to prepare a discovery plan to

facilitate discussions at the initial Rule 16(b) scheduling conference with courts.23

A

proposed amendment now before the Supreme Court would expand the required topics

for scheduling orders to include open preservation issues and the use of FRE 502

privilege non-waiver agreements.24

Another amendment would add a provision for

“Early Rule 34 Requests,” so that parties could exchange discovery requests prior to the

Rule 26(f) Conference.

Local rules often seek to facilitate the discussions. The District of Delaware, for

example, requires early disclosure of the ten custodians “most likely to have discoverable

information” as well as a list of the non-custodial data sources most likely to contain

“non-duplicative” discovery.”25

ESI protocols adopted as case management orders often

provide presumptive limits on the scope of preservation, numbers of custodians whose

ESI is to be reviewed and specific date range limits.

However, according to the 2006 Committee Note, “[t]he requirement that the

parties [must] discuss preservation [in Rule 26(f)] does not imply that courts should

routinely enter preservation orders [over objection]” and “[e]x parte preservation orders

should issue only in exceptional circumstances.”26

Unfortunately, many parties do not routinely discuss e-discovery at “meet and

confers” and “discovery plans” are often silent on the issues.27

It was estimated 1n 2012

that in only 13% of cases had parties actually discussed preservation issues involving ESI

at the Rule 26(f) Conference.28

Cooperation

22

In Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005), the Supreme Court noted that it was

“not wrongful for a manager to instruct his employees to comply with a valid document retention policy

under ordinary circumstances.” 23

Rule 26(f)(3)(C) requires that the discovery plan include, inter alia, “any issues about disclosure or

discovery of [ESI], including the form or forms in which it should be produced.” 24

June 2014 RULES REPORT, at B-26/27 & B-35 (amending Rule 26(f) and 16(b) to help focus discussion

on preservation issues in discovery plans and scheduling orders and to encourage use of FRE 502

agreements relating to privilege waiver). 25

Delaware Fed. Ct. Default Standard (2011), Para. 3, copy at http://www.ded.uscourts.gov/ (scroll to

Local Rules & General Orders, then to Default Standard for Discovery). 26

Committee Note, Rule 26(f), 234 F.R.D. 219, 323 (2006) 27

See, e.g., Mag. Judge Geraldine Brown, Reining in E-Discovery, ABA Litigation, Summer 2011, 3

(“rarely have I seen any report of a Rule 26(f) conference that included a serious discussion of ESI, what

should be preserved, and what is reasonably accessible”), copy at

http://apps.americanbar.org/litigation/litigationnews/trial_skills/012412-tips-reining-in-ediscovery.html. 28

Emery G. Lee III, Early Stages of Litigation Attorney Survey, March 2012, at 5, n. 8, copy at

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2012-

03_Addendum.pdf.

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The key to successful party-managed e-discovery is said to be cooperation.29

In

Mancia v. Mayflower Textile Servs. Co, the court observed that if “counsel cooperate and

communicate” at the start of discovery then “most, if not all, of the disputes [can be]

resolved without involving the court.”30

The Sedona Conference® Cooperation

Proclamation challenges parties to adopt a culture of cooperation in discovery.31

Many

Local Rules32

and e-discovery initiatives33

invoke cooperation as an aspirational standard.

Courts expect parties to reach practical agreements on key issues, and are not

hesitant to frame the obligation in terms of a party-driven process requiring

cooperation.34

The Federal Rules do not explicitly mandate a “duty to cooperate,”35

but

counsel and parties must participate in “good faith” in preparing discovery plans and

attending case management conferences.36

Rule 26(g) also requires counsel to conduct a

reasonable inquiry before signing a pleading providing or objecting to discovery.

A pending proposal to amend Rule 1 (which speaks of the need to achieve the

“just, speedy, and inexpensive determination of every action and proceeding)” will

require that it be “construed, and administered and employed by the court and the parties

to secure the just, speedy, and inexpensive determination of every action and

proceeding.” (new material underlined).

The proposed Committee Note observes that “most lawyers and parties cooperate

to achieve those ends” and that “effective advocacy is consistent with – and indeed

depends upon – cooperative and proportional use of procedure.”37

The final version of

the Note also adds that “[t]his amendment does not create a new or independent source of

sanctions” and “neither does it abridge the scope of any other of these rules.”

Case Management

29

Saliga v. Chemtura, 2013 WL 6182227, at *1 (D. Conn. Nov. 25, 2013)(“the best solution in the entire

area of electronic discovery is cooperation among counsel”). 30

253 F.R.D. 354, 365 (D. Md. Oct. 15, 2008). 31

The Sedona Conference ® Cooperation Proclamation, 10 SEDONA CONF. J. 331(2009). 32

See, e.g., Local Rule 26.4, Southern and Eastern District of N.Y. (the expectation of cooperation of

counsel must be “consistent with the interests of their clients”). 33

See [MODEL] STIPULATED ORDER (N.D. CAL), ¶ 2, (“[t]he parties are aware of the importance the Court

places on cooperation and commit to cooperate in good faith throughout the [litigation]). 34

Romero v. Allstate Insurance, 271 F.R.D. 96, 109-110 (E.D. Pa. Oct. 21, 2010)(compelling parties to

meet and confer about search terms, custodians and date ranges “considering these principles of

cooperation” [citing to the articles and cases about the Sedona Cooperation initiative). 35

Steven Gensler, Some Thoughts on the Lawyer’s E-Volving Duties in Discovery, 36 N. KY. L. REV. 521,

547 (2009)(a 1978 proposal requiring cooperation was deleted). 36

F.R.C.P Rule 16(f) and Rule 37(f). 37

June 2014 RULES REPORT, Committee Note, at B-22

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The 2006 Amendments were intended to also encourage courts to become more

actively involved with e-discovery planning in those cases where it could be helpful.38

However, judicial resources are necessarily limited.39

(3) Preservation

The common law duty to preserve discoverable information in advance of or

during litigation is widely acknowledged in federal and state courts.40

A party must take

appropriate action to preserve what it knows, or reasonably should know, is relevant in

the action, and is reasonably likely to be requested during discovery or is already the

subject of a pending discovery request.

The “duty to preserve” is an outgrowth of the doctrine that the failure to preserve

property for another’s use as evidence in pending or reasonably foreseeable litigation

constitutes “spoliation.”41

The duty to preserve is owed to and enforced by federal

courts through spoliation sanctions and, not, as is the case in some states, through tort-

based causes of action to recover individual damages. 42

Courts first assess whether a

breach of the duty to preserve has occurred before proceeding to determine what, if any

sanction or other measures to imposed for spoliation.

Once the onset of a duty to preserve is “triggered,” parties typically execute their

responsibilities by implementing “litigation holds,” an approach popularized by Zubulake

v. UBS Warburg (“Zubulake IV”).43

The goal is to provide notification to relevant

custodians and others of their responsibilities to take affirmative actions to prevent

destruction or alteration of relevant information. The role of outside counsel in planning

and executing preservation responsibilities can be important.

The onset or “trigger” of the duty is discussed in Section 3.1 and the obligations

associated with use of “litigation holds” is covered in Section 3.2. Spoliation sanctions

are covered in Section 3.3.

In 2006, a somewhat tentative effort was made by what is now Rule 37(e) to

restrict rule-based sanctions for certain losses of ESI. Subsection 3.4 deals with current

Rule 37(e) and its proposed replacement now pending before the Supreme Court.

38

Lee H. Rosenthal, From Rules of Procedure to how Lawyers Litigate: ‘Twixt The Cup and the Lip,” 87

DENV. U. L. REV. 227, 236 (2010)(arguing for early involvement of judges in “the cases that need such

supervision”). 39

Thompson v. C&H Sugar, 2014 WL 595911, at *5, n. 6 (N.D. Cal. Feb. 14, 2014)(it is better for

“cooperating [parties] to iron out discovery wrinkles on their own” since the court “do not have resources

police closely the operation of the discovery process”) 40

Silvestri v. Gen. Motors. Corp., 271 F.3d 583, 591 (9th

Cir. 2001)(“The duty to preserve material

evidence arises not only during litigation but also extends to that period before the litigation when a party

reasonably should know that the evidence may be relevant to anticipated litigation”). 41

West v. Goodyear Tire & Rubber, 167 F.3d 776, 779 (2nd

Cir. Feb. 12, 1999). 42

Cf. Miller v. Lankow, 801 N.W.2d 120, 128 at n. 2 (Sup. Ct. Minn. Aug. 3, 2011)(the “use of the word

‘duty’ [in regard to a request for sanctions] is not meant to imply a general duty in tort”). 43

220 F.R.D. 212, 218 (S.D. N.Y. 2003).

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(3.1) Trigger

The duty to preserve arises (is “triggered”) upon commencement of litigation or

when a party has notice that discoverable information may be sought in connection with

future litigation. The duty to preserve arises “once a party reasonably anticipates

litigation.”44

Many federal and state courts have adopted that formulation, although it

must be particularized to specific litigation since, at least for large corporations, “the

threat of litigation is ever present.”45

A variety of events may alert a party to the prospect of litigation. Litigation

need not be “‘imminent, or probable without significant contingencies’” for the duty to

arise.46

However, in Cache La Poudre Feeds v. Land O’Lakes,47

a court refused to find

that a demand letter was sufficiently explicit to trigger an obligation a duty to preserve.48

The duty is not triggered by unrelated lawsuits which raise different factual issues

and “would not have given [a party] reasonable notice of the foreseeability [of the

subsequent] litigation.”49

In the Ethicon MDL Litigation,50

institution of an “isolated

lawsuit or even two would not reasonably lead [a party] to believe that large scale

nationwide products liability litigation was down the road.”51

However, in the Actos MDL Litigation, the court interpreted a broad “general

products liability hold” in an early case as establishing the trigger and scope of the duty

to preserve for subsequent lawsuits relating to different types of injuries arising from the

use of the same product.52

There is authority to the effect that federal regulations requiring retention of

certain employment records “can create the requisite obligation to retain records, even if

litigation involving the records is not reasonably foreseeable.”53

44

Zubulake IV, supra, 220 F.R.D. 212, 218 (S.D. N.Y. 2003). 45

See Concord Boat v. Brunswick Corporation, 1997 WL 33352759, at *4 (E.D. Ark. Aug. 29,

1997)(refusing to find duty triggered by mere involvement in antitrust matters prior to suit because “to hold

that a corporation is under a duty to preserve all e-mail potentially relevant to any future litigation would be

tantamount to holding that the corporation must preserve all e-mail”). 46

Hynix v. Rambus, 645 F.3d 1336, 1346-1347 (Fed. Cir. May 13, 2011)(“contingencies whose resolutions

are reasonably foreseeable do not foreclose a conclusion that litigation is reasonable foreseeable”). 47

244 F.R.D. 614 (D. Colo. March 2, 2007). 48

Id., 622-624 (“[r]ather than threatening impending litigation, [the letter] implied that her client preferred

and was willing to explore a negotiated resolution”). 49

In re Pfizer Inc. Securities Litigation, 288 F.R.D. 297, 316 (S.D. N.Y. Jan. 8, 2013)(collecting cases). 50

299 F.R.D. 502, 516-517 (S.D. West Va. Feb. 4, 2014)(selecting intermediate dates as trigger based on

intent of in-house counsel reflected in a subsequent consolidated litigation hold). 51

Id., 516 (contrasting In re Pradaxa, 2013 WL 6486921, at *7 (S.D. Ill. Dec. 9, 2013). 52

For an excellent analysis of the difficulties in managing the framing of litigation holds in the context of

Pradaxa, Ethicon and Actos, see Litigation Holds Matter, April 3, 2014, Drug and Device Law (Blog). 53

Byrnie v. Town of Cromwell, 243 F. 3d 93, 109 ((2nd

Cir. March 15, 2001)(citing 29 CFR §1602.40

relating to school personnel).

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(3.2) Litigation Holds/Breach

The classic articulation of the preservation duty is in Zubulake v. UBS Warburg

(“Zubulake IV”), where the court held that “once a party reasonably anticipates

litigation, it must suspend its routine document retention/destruction policy and put in

place a ‘litigation hold’ to ensure the preservation of relevant documents.”54

The 2006 Committee Note to 37(f) (now Rule 37(e)) confirmed that “intervention

in the routine operation of an information system is one aspect of what is often called a

‘litigation hold.’”55

A litigation hold is arguably protected from production by the

attorney-client privilege, although not the details of the issuance and implementation.56

In Zubulake v. UBS Warburg (“Zubulake V”),57

the court advocated “active

supervision” of preservation by counsel and specified the “steps that counsel should take

to ensure compliance with the preservation obligation” relating to its implementation.58

In Pension Committee,59

an update of the Zubulake cases, a failure to issue a written

litigation hold was held to constitute grossly negligence behavior because it was “likely

to result in the destruction of relevant information.”

The Pension Committee court also held that “[r]elevance and prejudice may be

presumed when the spoliating party acted in bad faith or in a grossly negligent manner.”60

The holding that a failure to use a written litigation hold is a per se breach of the

duty to preserve was subsequently repudiated by the Second Circuit,61

in reliance on

Orbit One Communications, where the court noted that “in a small enterprise, issuing a

written litigation hold may not only be unnecessary . . . but a formal litigation hold may

not be necessary at all.”62

Many federal63

and state courts64

now agree that the

particular form of a preservation notice is not determinative of a breach of duty.

54

220 F.R.D. 212, 218 (S.D. N.Y. 2003). 55

Committee Note (2006), at 234 F.R.D. 219, 374 (2006); see Pettit v. Smith, 2014 WL 4425779, at n. 7

(D. Ariz. Sept. 9, 2014)(citing Committee Note as source of “duty to intervene”). 56

Chura v. Delmar Gardens, 2012 WL 940270, at *12 (D. Kan. March 20, 2012)(requiring testimony about

when and how litigation holds were instituted and what efforts were made to preserve, including

subsequent searches of computers). 57

Zubulake v. UBS Warburg LLC (“Zubulake V”), 229 F.R.D. 422 (S.D. N.Y. July 20, 2004”). 58

Id., at 433-434. See also Brown v. Tellermate Holdings, 2014 WL 2987051, at *19-20 (S.D. Ohio July

1, 2014)(speaking of the failure to preserve information available in the “cloud” via contractual

arrangements). 59

Pension Committee v. Banc of America Securities, 685 F. Supp.2d 456, 465 (S.D. N.Y. Jan. 15, 2010,

amended May 28, 2010)(“Zubulake Revisited: Six Years Later”). 60

Id., 468. (also listing examples, at 466, of other per se sanctionable conduct). 61

Chin v. Port Authority, 685 F3d 136, 162 (2nd

Cir. July 10, 2012), cert. den. __US __, 133 S.Ct. 1724,

185 L.Ed.2d 785 (2013)(“[w]e reject the notion that a failure to institute a ‘litigation hold’ constitutes gross

negligence per se. Contra Pension Comm.”). 62

Orbit One Communications v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. Oct. 26, 2010). 63

Tracy v. NVR, 2012 WL 1067889, at *1-3 (W.D. N.Y. March 26, 2012)(since spoliation is fact specific

issue involving reasonableness and proportionality, motion to compel litigation hold denied for failure to to

establish that documents that should have been preserved were lost or destroyed).

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A competing analysis - announced roughly contemporaneously with Pension

Committee - is found in Rimkus v. Cammarata,65

where the former Chair of the Rules

Committee stated that:

“Whether preservation of discovery conduct is acceptable in a case

depends on what is reasonable, and that in turn depends on whether that

was done – or not done – was proportional to that case and consistent with

clearly established applicable standards.”66

(emphasis in original)

Something akin to that standard in inherent in the “reasonable steps” requirement

in the proposed Rule 37(e), as discussed below. However, in Orbit One, supra, Judge

Francis pre-emptively criticized the efficacy of that the standard as “too amorphous to

provide much comfort to a party deciding what files it may delete or backup tapes it may

recycle.”67

Similarly, in Pippins v. KPMG, while the court famously observed that

“[p]reservation and production are necessarily interrelated,” it nonetheless refused to

excuse a party from preserving hard drives of former employees at considerable

expense.68

Examples

While ESI is typically preserved from accessible or “active” sources, such as

enterprise systems and custodial files of key employees, it may also be found on less

accessible sources such as backup media, legacy systems or on distributed devices such

as personal smartphones or stored “in the cloud.”69

ESI which requires “additional steps to retrieve and store” arguably need not be

preserved absent notice that the requesting party considers it relevant and is requesting

it.70

In Columbia Pictures v. Bunnell,71

for example, the duty to preserve information

64

Pegasus Aviation v. Varig Logistica S.A., 118 A.D. 428, 987 N.Y.S. 2d 350, 354 (App. Div. 1st Dept.

June 5, 2014)(refusing to find that a party acted with gross negligence in failing to use a written litigation

hold). 65

688 F. Supp. 2d 598 (S.D. Texas Feb. 19, 2010). 66

Id., 613. 67

Orbit One Communications v. Numerex Corp., 271 F.R.D. 429, 436 (S.D. N.Y. Oct. 26,

2010)(suggesting that “[u]ntil a more precise definition is created by rule, a party is well-advised” to

preserve all relevant documents in existence at the time the duty to preserve attaches [citing Zubulake IV]). 68

279 F.R.D. 245, 255 (S.D. N.Y. Feb. 3, 2012). 69

For a comprehensive view, see Working Group, IT Technologies and How To Preserve, 40 WM.

MITCHELL L. REV. 486 (2014). 70

Arista Records LLC v. Usenet.Com, 608 F.Supp.2d 409, 431 (S.D. N.Y. Jan. 26, 2009)( transitory data);

Healthcare Advocates v. Hardin, Earley, Follmer & Frailey, 497 F. Supp. 627, 640-641 (E. D. Pa. July 20,

2007) loss of temporary cache files); Principle 9, Sedona Conference® Principles (“it is ordinarily not

required to “preserve, review, or produce deleted, shadowed, fragmented, or residual [ESI]”). 71

Columbia Pictures v. Bunnell, 2007 WL 2080419, at *14 (C.D. Cal. May 29, 2007), aff’d sub. nom, 245

F.R.D. 433 (C.D. Cal. August 24, 2007).

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temporarily residing in Random Access Memory (RAM) was held to have existed only

after the issue was raised by the requesting party.

Local Rules, Guidelines or model protocols often list presumptive types of ESI

which must be preserved72

or encourage parties to enter into Stipulations to that effect.

The following discussion illustrates some of the current factual areas which are

most likely to lead to problematic issues.

Delayed or Inadequate Litigation Holds

Allegations of spoliation are frequently based on a delayed or inadequately

implemented “litigation hold.” Parties seeking to defend such facts often cite to

Zubulake IV, where the court noted that corporations are not under a duty to preserve

“every shred of paper, every email or electronic document and every backup tape.”73

They also point to the lack of prejudice, giving totality of the evidence produced,

including evidence from other sources,74

as well as to good faith efforts undertaken after

the lack of preservation has been identified.75

Others argue that the missing evidence has not been shown to be relevant or, in

any event, has resulted in minimal prejudice.76

That argument is often counterbalanced

by the Pension Committee holding that a court is permitted to “presume” the requisite

relevance (and prejudice) based on gross negligence or willful conduct.77

In Sekisui v. American Corporation, for example, the court held that a delay in

implementation of a litigation hold justified instructing a jury that it could presume that

the missing emails were both relevant and prejudicial as part of an adverse inference

instruction.78

Suspension of Auto-Delete

72

Delaware Fed. Ct. Default Standard (2011), Para. 1(b), copy at http://www.ded.uscourts.gov/ (scroll to

Local Rules & General Orders, then to Default Standard for Discovery)( Appendix A (listing categories of

ESI that need not be preserved absent a showing of good cause by the requesting party). 73

220 F.R.D. 212, 217, n. 21 (S.D. N.Y. Oct. 22, 2003)(quoting from Concord Boat v. Brunswick, 1997

WL 33352759, at *4 to the effect that it would not be “justified” to hold that a large corporation must

preserve all e-mail potentially relevant to any future litigation since they are almost always involved in

litigation). 74

In Vincente v. Prescott, City Of, 2014 WL 3939277, at *11 (D. Ariz. Aug. 13, 2014)(sanctions denied

since “complete lack of prejudice” after information secured from 3rd

party source)(Campbell, J.). 75

In re Pfizer Inc. Securities Litigation, 288 F.R.D. 297, 318 (S.D. N.Y. Jan. 8, 2013)(“[a]lthough its

efforts may not have been perfect, Pfizer did endeavor to meet all its obligations once additional document

depositories were identified and did produce an additional 20 million pages of documents”). 76

Haynes v. Dart, 2010 WL 140387, at *4 (N.D. Ill. Jan. 11, 2010)(“[t]he court is not persuaded that

plaintiffs were deprived of discovery necessary to prosecute their case”). 77

Pension Committee, supra, 685 F. Supp. 2d 456, 468 (S.D. N.Y. May 28, 2010). 78

945 F. Supp.2d 494, 508-509 (S.D. N.Y. Aug. 15, 2013)(“prejudice is presumed for the purposes of

determining whether to give an adverse inference instruction when, as here, evidence is willfully destroyed

by the spoliating party”).

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A failure to intervene to prevent auto-deletion of e-mail from active email

accounts of key custodians is frequently cited as a breach. Deletion of information on

hard drives of laptops of former employees is also problematic after a duty to preserve

attaches.79

Many courts find it insufficient to instruct custodians that they are to avoid

auto-deletion by means of moving a copy of their ESI to a file not subject to the policy.80

In Jackson Family Wines, a provocative email of a former employee was secured by

subpoena from a third party, leading to an adverse inference instruction and monetary

sanctions.81

In Mastr. Adjustable Rate Mortgages, however, a litigation hold was deemed

reasonable which relied upon custodians to send email to a litigation hold folder without

suspending the auto-delete function.82

Recycling of Media

Similar issues are often raised about the reuse of media used in backup systems,

although some decisions categorically exempt such reuse when used for disaster

recovery83

absent a showing of unique information not otherwise available.84

When

used as an “archive,” however, they may not qualify as intended for disaster recovery

purposes.

Similarly, audio and video tapes may be overwritten – deliberately and pursuant

to policy – and take with it the only copies of information which may become relevant in

anticipated litigation.

Third-Party Storage

A party has a duty to preserve information on cloud-based third party websites if

it has the ability to require such action.85

The same is true as to ESI located on employer-furnished smartphones or tablets,

including those individually owned but with intermingled personal and business

contents.86

79

Cache La Pudre v. Land O’ Lakes, 244 F.R.D. 614, 629-630 (D. Colo. March 2, 2007)(finding violation

of duty to preserve by expunging hard drives of key former employees after litigation began). 80

Voom v. EchoStar, 93 A.D. 3d 33, 939 N.Y.S. 2d 321, at 327-328 (S.C. App. Dist. 1st Dept. Jan. 31,

2012). 81

Jackson Family Wines v. Diageo North America, 2014 WL 595912 (N.D. Cal. Feb. 14, 2014). 82

Mastr Adjustable Rate Mortgages Trust, 295 F.R.D. 77, 84-85 (S.D. N.Y. Oct. 23, 2013)(“the litigation

hold that U.S. Bank finally imposed was reasonable”). 83

Zubulake IV, 220 F.R.D. 212, 217-218 (S.D. N.Y. Oct. 22, 2003)(except for identifiable tapes storing

documents of key players when the information is not otherwise available). 84

Gaalla v. Citizens Medical Center, 2011 WL 2115670, at *2 (S.D. Tex. May 27, 2011)(ordering forward

looking preservation of existing first of month disaster recovery tapes). 85

Brown v. Tellermate Holdings, 2014 WL 2987051 (S.D. Ohio July 1, 2014)(sanctioning party whose

counsel failed to understand the need to act to preserve information stored in “Salesforce.com”).

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Proposed Standard (“Reasonable Steps”)

As discussed in Section 3.4, below, the Rules Committee has proposed to replace

existing Rule 37(e) with a provision which affirmatively authorizing measures in

response to failures to preserve ESI. That rule will require certain predicate findings

regarding breach of the duty to preserve:

“[Rule 37](e) Failure to Provide Preserve Electronically Stored

Information. If electronically stored information that should have been

preserved in the anticipation or conduct of litigation is lost because a party

failed to take reasonable steps to preserve it, and it cannot be restored or

replaced through additional discovery, the court: [may undertake the

listed actions in Subsections (1) or (2)].

If applied as intended, the rule could serve as a de facto “safe harbor” because “it

is inapplicable when the loss of information occurs despite the party’s reasonable steps to

preserve.”87

Analogies exist. In the corporate compliance context, for example, an entity that

takes “reasonable steps” to ensure that its compliance programs are “generally effective”

may benefit even though it may “fail[] to prevent or detect” a criminal offense.88

The

Rules Committee was well aware of that analogy.89

Indeed, the first draft of the original

proposal for current Rule 37(e) invoked “reasonable steps” as an element of a safe

harbor.90

Whether the party acted in good faith, as under current Rule 37(e), will also be

relevant. The proposed Committee Note identifies “good faith” as well “proportionality”

as a factor to use in evaluating the reasonableness of the efforts.91

(3.3) Spoliation Sanctions

Sanctions may be imposed for breach of the duty to preserve if the failure

occurred after a duty was triggered, while acting with a “culpable state of mind” and

resulted in destruction of relevant evidence which could have supported a claim or

86

Calderon v. Corporacion, 2014 WL 171599 (D. Puerto Rico Jan. 16, 2014)(finding spoliation in regard to

selective retention of text messages). 87

Committee Note, B-61. 88

USCG Guidelines Manual, §8B2.1, Para. (b)(it does not necessarily mean that the program is not

effective). 89

Meeting of November 15-16, 2010 at lines 687-690 (“compliance programs should count in favor of a

spoliator”). 90

See Convolve v. Compaq Computer, 223 F.R.D. 162, 177 (S.D. N.Y. Aug. 17, 2004)(finding failure to

preserve ephemeral wave form patterns on oscilloscope not sanctionable by analogy to (then) proposed

Rule 37(f) draft (August 3, 2005)). 91

Committee Note, B-61 & 62.

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defense.92

Once that predicate threshold is met, courts have discretion to choose from a

wide variety of sanctions to remedy spoliation, often reflecting where the failure falls

along the “continuum of fault.”93

The degree of prejudice involved frequently plays a role in the selection.94

Courts speak of leveling the playing field, deterring future misconduct and punishment as

the goals of the sanction process.95

The authority to act may rest on Rule 37(b) which provides for “sanctions” (but

not adverse inferences) for failures to obey an order to “provide or permit” discovery. An

early decision in the Southern District of New York argued that the rule “comes into

play” where spoliation occurs without a prior order if it results in a failure to make

discovery “because this inability [to produce] was self-inflicted.”96

More commonly, at least since the Supreme Court decision in Chambers v.

NASCO97

courts cite to their inherent power to deal with litigation abuse. The Supreme

Court explained that the “inherent power extends to a full range of litigation abuses,”98

including spoliation, “even if procedural rules exist which sanction the same conduct.”99

Some decisions cite to both Rule 37(b) and their inherent authority.100

Dismissals and Defaults

In federal courts, case dispositive measures such as default judgments and

dismissals are available where the spoliation has caused substantial prejudice and the

culpability involved is high. Most Circuits authorize such harsh measures for spoliation

only when and if “the offending party is seriously at fault.”101

Many Circuits have evolved unique lists of factors designed to courts in

exercising their discretion to impose harsh sanctions. This reflects the fact that when

acting under Rule 37, a “central requirement” is that the sanction must be “just” and

92

Beaven v. USDOJ, 622 F.3d. 540, 553 (6th

Cir. 2010)(citing Residential Funding v. DeGeorge, 306 F.3d

99, 107 (2nd

Cir. 2002). 93

Ross v. American Red Cross, 567 Fed. Apprx. 296, at *3 (6th Cir. Jan. 27, 2014)(a party’s fault may “fall

‘along a continuum of fault – ranging from innocence through the degrees of negligence to

intentionality’”). 94

Lentini v. Weschler, 2014 WL 4435955 (N.Y. App. Div. 2nd

Dept. Sept. 10, 2014)(affirming summary

judgment for plaintiff where party paved over walkway before plaintiff was about to inspect since plaintiff

was unable to rely on other evidence to prove claims). 95

E.I. du Pont de Nemours and Co. v. Kolon, 803 F. Supp.2d 469, 499 (E.D. Va. July 21, 2011)(“the

applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales

underlying the spoliation doctrine”). 96

Turner v. Hudson Transit Lines, 142 F.R.D. 68, 72 (S.D. N.Y. Sept. 27, 1991). 97

Chambers v. NASCO, 501 U.S. 32, 46 (1991)(sanctioning scheme of the rules does not displace “the

inherent power to impose sanctions”). 98

Id., at 46. 99

Id., at 49. 100

Zubulake v. UBS Warburg, 220 F.R.D. 212, 216 (S.D. N.Y. Oct. 22, 2003)(citing Turner, supra) 101

Schmid v. Milwaukee Elec. Tool Corp, 13 F.3d 76, 79 (3d Cir. 1994).

January 6, 2015

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“guided by the “‘concept of proportionality’ between offense and sanction.”102

Similarly, when invoking inherent power, a court must “calibrate the scales to ensure that

the gravity of an inherent power sanction corresponds to the misconduct.”103

In Hosch v. BAE Systems,104

intentional deletions of ESI from smartphones after

receiving demands for preservation resulted in defendant being “crippled” in its ability to

properly prepare its defenses. The court dismissed the action under Rule 37(b), given

the need for a “proportionately severe” response.105

Similarly, in Silvestri v. GM,106

a

court dismissed an action where the defendant suffered irreparable prejudice, even though

the culpability of the offending party was low.

Adverse Inference/Jury Instructions

The most frequently invoked remedy for spoliation is to instruct a jury that it may

draw an evidentiary inference or presumption that the missing information would have

been unfavorable to the party whose conduct led to the failure to preserve. Examples of

such instructions permitting are found in the opinions in Zubulake V,107

Pension

Committee108

and Sekisui v. Hart.109

Federal Circuits have been badly split on the level of culpability required to

justify such an adverse inference. In Residential Funding v. DeGeorge,110

the Second

Circuit held that an adverse inference may be drawn when discoverable information was

altered or destroyed “knowingly, even if without intent to [breach a duty to preserve it] or

negligently” (emphasis in original).111

The same analysis is applied in the Fourth, Sixth,

Ninth Circuits and District of Columbia Circuits.

In other Circuits, however, there must be an “actual suppression or withholding of

evidence,”112

sometimes referred to as “bad faith.”113

These courts hold that mere

102

Dinkel v. Medstar Health, 2014 WL 2885692, at *3 (D.D.C. June 26, 2014)(request for dismissal as

sanction denied as not appropriate under the circumstances, citing to Bonds v. D.C., 93 F.3d 801, 808 (D.C.

Cir. 1996)). 103

Davis v. DC Child and Family Services Agency, at *7 (D.D.C. June 4, 2014)(awarding monetary

sanctions, not dismissal, since lack of actual prejudice, citing to Shepherd v. ABC, 62 F.3d 1469, 1474

(D.C. Cir. 1995)) 104

2014 WL 1681694 (E.D. Va. 2014). 105

The court also awarded attorney fees under Rule 37(d)(3) since the failure was not substantially justified

and an award would not be unjust. 106

271 F.3d 583, 593 (4th

Cir. 2001). 107

Zubulake v. UBS Warburg (“Zubulake V”), 229 F.R.D. 422, 439-440 (S.D. N.Y. July 20,

2004)(permissive inference that missing emails would have been unfavorable to UBS). 108

Pension Committee v. Banc of America, 685 F. Supp. 2d 456, 496-497 (S.D. N.Y. May 28, 2010)(“you

may presume, if you so choose, tht such lost evidence was relevant, and that it would have been favorable

to [defendants]”). 109

Sekisui American v. Hart, 945 F.supp.2d 494, 509-510 (S.D. N.Y. Aug. 15, 2013)(“you may presume, if

you so choose” that “lost” evidence would have been favorable to Harts) 110

Residential Funding Corp v. DeGeorge, 306 F.3d 99 (2nd

Cir. Sept. 26, 2002). 111

Id., 108. 112

Brigham Young University v. Pfizer, 2012 WL 1302288, at *6 (D. Utah April 16, 2012)(“an aggrieved

party must prove bad faith [to enter a spoliation instruction or adverse inference instruction”).

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negligence or gross negligence does not sustain an inference of consciousness of a weak

case. This is the position taken in the First, Third, Fifth, Seventh, Eighth, Tenth,

Eleventh and Federal Circuits. This split in authority is said to contribute to costly “over-

preservation” on the part of corporate defendants who cannot know, in advance, where

litigation may be brought.

The pending proposal for a new Rule 37(e) would resolve the split by requiring

that permissive and mandatory jury instructions that missing information is unfavorable

be imposed only if “the party acted with the intent to deprive another party of the

information’s use in the litigation.”114

See Section 3.4, infra.

Some courts also permit juries to receive evidence of spoliation without

encouraging or authorizing specific inferences.115

Those courts do so on the theory that

the jury is free to make whatever they wish from those facts116

regardless of the fact that

it may confuse or prejudice the jury,117

as vividly demonstrated in the Actos litigation.

In Actos, the jury was allowed “to hear all evidence and argument establishing

and bearing on the good or bad faith” of a party’s conduct.118

The jury found for plaintiffs

and subsequently entered an award of $9B (later reduced to $37M). The court explained

that while it had not authorized the jury to sanction via punitive damages, “[t]he jury was

free to make its own inferences.”119

The Committee Notes to proposed Rule 37(e) pending before the Supreme Court

confirms that Subdivision (e)(1)120

would permit that approach provided that it was “no

greater than necessary to cure the prejudice” caused by a failure to preserve.121

Some courts have expressed concerns that in giving an adverse inference

instruction, the federal judge brands one party “as a bad actor” and which “necessarily

opens the door to a certain degree of speculation by the jury.”122

It is not unusual for

courts to seek a more proportionate response by requiring consideration of lesser

113

Micron Technology v. Rambus, 645 F.3d 1311 (Fed. Cir. May 13, 2011). 114

June 2014 Rules Report, B-57. 115

Mali v. Federal Insurance, 720 F3d. 387, 393 (2nd

Cir. June 13, 2013)(“[i]t is not a sanction. It is no

more than an explanation of the jury’s fact-finding powers”). 116

Russell v. U. of Texas, 234 F. Appx. 195, 208 (5th

Cir. June 28, 2007)(“the jury heard testimony that the

documents were important and that they were destroyed. The jury was free to weigh this information as it

saw fit”). 117

Gorelick, at § 2.4B (“the marginal relevance of spoliation evidence [may be] outweighed by its power to

inflame juries”). 118

In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 2872299 at *38 (W.D. La. Jan. 30,

2014)(filed June 23, 2014). 119

In re Actos, 2014 WL 4364832, at *45 (W.D. La. Sept. 2, 2014)(refusing post-trial relief while also

noting that “[t]he jury was free to make its own inferences”); see also In re Actos, 2014 WL 5461859, at

*55 (W.D. La. Oct. 27, 2014)(modifying punitive damages to $28M against Takeda and $9M against Lilly

“to send a message” for “seriously reprehensible behavior”). 120

June 2014 Rules Report, B-57 (text) 121

Committee Note, B-64 (in order to “assist in its evaluation of such evidence or argument”). 122

Morris v. Union Pacific Railroad, 373 F.3d 896, 900 (8th

Cir. June 28, 2004)(requiring new trial).

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sanctions.123

However, Judge Scheindlin has recently opined that concerns about jury

prejudice are “somewhat overblown.”124

Lesser Sanctions

A lesser remedy frequently imposed by courts for spoliation is an order

reimbursing parties for reasonable costs, including attorney’s fees, expended in

addressing failures to preserve. Rule 37(b)(2)(C) permits such relief if a court order has

been violated125

as does Rule 37(a)(5)(A) under some circumstances.126

Some courts

also act under their inherent powers, despite statements in Chambers v. NASCO implying

that a finding of “bad faith” is needed to shift attorney’s fees as an exception to the

American Rule.127

Other courts impose monetary sanctions – payable to the courts – which are

sometimes described as fines.128

In Cache La Poudre v. Land O’Lakes, the court

refused to impose a “fine” since it might constitute a criminal contempt award without

necessary procedural protections.129

Instead, it awarded $5K as a monetary sanctions,

payable to the other party.130

States

Most states authorize use of spoliation sanctions under their Civil Rules or

inherent power as the primary means of addressing failures to preserve, although a

limited number of states also purport to authorize the recovery of damages in independent

tort-based actions based on the same facts.131

State courts in California132

and Illinois133

have unique laws and case authority regarding spoliation.

123

Bonds v. District of Columbia, 93 F.3d 801, 808-809 (D.C.A. 1996)(before imposing severe sanctions

such as preclusions approaching a default judgment, court should consider a less drastic sanction which

reflects proportionality between offense and sanction). 124

Scheindlin and Orr, The Adverse Inference Instruction After Revised Rule 37(e): An evidence-Based

Proposal, 83 Fordham L. Rev. 1299, 1309 (2014)(without any mention of Actos, infra). 125

See Zubulake v. UBS Warburg, 229 F.R.D. 422, 439, n. 119 (S.D. N.Y. July 20, 2004)(“[p]ay all

reasonable expenses, including attorney’s fee” citing Fed. R. Civ. P. 37(b)(2)). 126

Pugliese v. County of Lancaster, 2014 WL 5470469 (E.D. Pa. Oct. 29, 2014). 127

501 U.S. 32, 45 (1991). See also Joseph v. Linehaul Logistics, 549 Fed. Appx. 607 (9th

Cir. Dec. 9,

2013)(“[b]ad faith must be found before a federal court can award attorneys’ fees as a sanction under its

inherent authority”). 128

United States v. Philip Morris, 327 F.Supp. 2d 21 (D.DC. 2004)(ordering payment of $2.75M into Court

Registry as well as reimbursement or costs associated with a Rule 30(b)(6) deposition. 129

Cache La Poudre Foods v. Land O’Lakes, 244 FRD 614, 637-638 (D. Colo. 2007)(citing Phillip Morris

as an example of a fine). 130

Id., at 635-636 (relying on Turner v. Hudson Transit Lines, 142 F.R.D. 68, 78 (S.D. N.Y. 1991). 131

See e.g., Miller v. Federal Express, 303 Ed. Law. Rep. 500, 6 N.E. 3d 1006, 1011 (C.A. Ind. April 3,

2014(“there is no independent cause of action in Indiana for spoliation of evidence). 132

Doppes v. Bentley Motors, 174 Cal. App.4th

967, n. 5, 94 Cal. Rptr. 3d 802 (C.A. 4th

Dist. June 8,

2009)(finding it unnecessary to decide if it had authority to “issue sanctions [under civil rules] absent a

failure to obey an order compelling discovery” since Bentley had failed to obey several orders). 133

Shimanovsky v. GM, 181 Ill. 2d 112, 692 N.E.2d 286, 290 (S.Ct. Ill. Feb. 20, 1998)(allowing sanctions

for pre-litigation conduct under civil rules because to hold otherwise would not deter failures to preserve).

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(3.4) Rule 37(e)

In its original (2006), and current form, Rule 37(e)(as renumbered without change

in 2007) provides that:

“(e) Failure to Provide Electronically Stored Information. Absent

exceptional circumstances, a court may not impose sanctions under these

rules on a party for failing to provide electronically stored information lost

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

system.”

A counterpart to Rule 37(e) has been adopted by twenty-seven states,134

with

some variations.135

Connecticut, reacting to subsequent criticism of the rule, broadened

its scope and clarified that a showing of heightened culpability is needed to overcome the

bar on sanctions.136

The current rule has been interpreted as inapplicable once a duty to preserve

attached.137

Other courts, however, have held that in the absence of an affirmative finding

of bad faith conduct, sanctions are inapplicable even if there is a loss of ESI after a duty

is triggered.138

In Pettit v. Smith, the current Chair of the Rules Committee found the rule to

“have no bearing” where a party could have but did not intervene to prevent the deletion,

citing to the 2006 Committee Note.139

Replacement for Rule 37(e)

At the 2010 Duke Litigation Conference, the E-Discovery Panel, on which the

author served, recommended a new rule to spell out preservation obligations and resolve

the Circuit “split” over culpability which was contributing to over-preservation. After

134

Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Florida, Indiana, Iowa, Kansas,

Louisiana, Maine, Massachusetts, Maryland, Michigan, Minnesota, Montana, New Jersey, North Carolina,

North Dakota, Ohio, Oklahoma, Tennessee, Utah, Vermont, Wisconsin and Wyoming. 135

See, e.g., CAL CODE CIV. PROC. § 1985.8(l)(a court “shall not impose sanctions on a party or any

attorney of a party”). 136

CONNECTICUT PRACTICE BOOK, CT. R. SUPER CT CIV, § 13-14 (2012)(limiting sanctions “for failure to

provide information, including [ESI]” in the absence of “a showing of intentional actions designed to avoid

known preservation obligations”). 137

See Discovery Subcommittee Meeting Notes, February 25, 2014 Meeting, April 2014 Rule Committee

AGENDA BOOK, at 425 (“[t]hat rule ceases to apply once a duty to preserve arises”); Cf., Thomas Y.

Allman, Inadvertent Spoliation of ESI After the 2006 Amendments, 3 FED. CTS. L. REV. 25, 26

(2009)(some courts have completely ignored the clear implication that the [current] rule applies after the

duty to preserve has arisen, thereby rendering the rule largely superfluous). 138

Point Blank v. Toyobo America, 2011 WL 1456029 (S.D. Fla. April 5, 2011)(refusing sanctions, citing

Rule 37(e), in the absence of proof that failure to institute litigation hold was undertaken in bad faith). 139

Petttit v. Smith, 2014 WL 4425779, at n. 7 (D. Ariz. Sept. 9, 2014)(“intervention in the routine operation

of an information system is one aspect of what is often called a ‘litigation hold’”).

January 6, 2015

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considerations of alternatives, the Committee released its original proposal in August,

2013.140

With further revisions after public comments, the proposal now pending before

the Supreme Court provides:

“[Rule 37](e) Failure to Produce Preserve Electronically Stored

Information. If electronically stored information that should have been

preserved in the anticipation or conduct of litigation is lost because a party

failed to take reasonable steps to preserve it, and it cannot be restored or

replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the

information, may order measures no greater than necessary to

cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive

another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to

the party;

(B) instruct the jury that it may or must presume the

information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.”141

If the rule is inapplicable, a court may not resort to other remedies to address the

same conduct. The intent is to provide the sole remedy for losses of ESI due to failures

to preserve.142

As discussed in Section 3.2 (Litigation Holds/Breach), sanctions for a breach of

the duty to preserve are not available if a party is found to have taken “reasonable steps”

to preserve or if the loss can be ameliorated by further discovery. Courts will be expected

to first use their ample authority under Rules 16 and 26 to alleviate deficient preservation

through additional discovery, if possible. This may include ordering discovery from

inaccessible sources.

When the rule does apply, subdivision (e)(1) authorizes a court to use appropriate

measures to address any prejudice which may exist - but no more than is necessary for

that purpose. Subdivision (e)(1) measures do not require a showing of culpability, and

the court’s discretion is limited only by the requirement that the measures selected are

“no greater” than necessary to “cure the prejudice” involved.

140

The 2013 proposals are found at http://patentlyo.com/media/docs/2013/08/preliminary-draft-proposed-

amendments.pdf . 141

June 2014 RULES REPORT, copy at

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2014.pdf . 142

Committee Note, B-58 (the rule “forecloses reliance on inherent authority or state law to determine

when certain measures should be used”).

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Some examples are given in the Committee Note, including preclusion of

evidence and allowing a jury to learn of the spoliation, provided it “does not have the

effect of measures” under (e)(2).143

Subdivision (e)(2), on the other hand, authorizes permissive and mandatory

adverse inferences, dismissals and presumptions that the missing evidence was

unfavorable only if a party acted with an “intent to deprive another party of the

information’s use in the litigation.”

Under this subsection, the degree of prejudice is not an essential element.

A key aspect of subsection (e)(2) is its rejection of Residential Funding144

logic

permitting harsh sanctions for negligent or grossly negligent conduct. The Committee

Note cautions that a court is not required to act even if the requisite intent exists, since

“t]he remedy should fit the wrong.”145

This is consistent with the more general principle that “[t]he choice of sanction

should be guided by the ‘concept of proportionality’ between offense and sanction.” 146

Some question whether proof of “intent to deprive” might be satisfied by merely

reckless or willful conduct. 147

This would be inconsistent, however, with the

Committee desire to require conduct “akin to bad faith, but [which is] defined even more

precisely.”148

The Texas Supreme Court recently held in Brookshire Brothers v. Aldridge149

that

a finding of “specific intent of concealing discovery evidence” is required in such

instances because it is “congruent with the presumption underlying a spoliation

instruction – that the evidence would have hurt the wrongdoer.”

New York appellate courts, on the other hand, hold that “ordinary negligence may

provide a basis for the imposition of spoliation sanctions.”150

143

Committee Note, B-64; see also Schindlin and Orr, supra, The Adverse Inference Instruction After

Revised Rule 37(e), 83 FORDHAM L. REV. 1299, 1309 (2014). 144

Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2nd

Cir. 2002). 145

Committee Note, B-67. 146

Bonds v. District of Columbia, 93 F.3d 801,808 (D.C.A. 1996)(reversing and remanding dismissal as

abuse of discretion). 147

Phillip Favro, The New ESI Sanctions Framework under the Proposed Rule 37(e) Amendments, EDDE

Journal (ABA)(Summer 2014), copy at file:///C:/Users/PC/Downloads/-ST203001-relatedresources-

EDDE_JOURNAL-volume5_issue3.pdf (citing to Pension Committee). 148

June 2014 RULES REPORT, B-17. 149

57 Tex. Sup. Ct. J. 947, 438 S.W. 3d 9, 2014 WL 2994435 (S.C. Tex. July 3, 2014)(remanding for a

new trial after jury verdict of $1M in slip and fall case where jury allowed to hear evidence and argument

about failure to preserve video footage and was permitted to decide if spoliation occurred). 150

Pegasus Aviation v. Varig Logistica, 118 A.D. 3d 428, 987 N.Y.S. 2d 350, 356, 2014 N.Y. Slip Op.

04047 (App. Div. 1st Dept. June 4, 2014)(reversing sanctions).

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(4) Production

The production of ESI is typically made in a form or forms suitable to the type of

ESI involved, either by agreement or after conformance to a process under Rule 34(b).151

As is the case with meeting preservation requirements, the role of trial counsel in the

process can be important.152

We first discuss the scope of discovery, as limited by proportionality concerns,

before discussing details of key issues in the process. Where relevant, we note a

number of potential changes attributable to the pending Amendments before the Supreme

Court.

(4.1) Scope of Discovery/Proportionality

Rule 26(b)(1) provides that a requesting party may seek discovery of any non-

privileged information, including ESI, which is relevant to the claims or defenses

involved in the litigation. For good cause, at least for now,153

the scope may be

expanded to include matters relating to the “subject matter.”

Information sought in discovery must be in or under the “possession, custody or

control” of a party. ESI held by a foreign parent is typically not under the “control” of

its independent US subsidiary,154

although the opposite is often true if the foreign entity

is a subsidiary of the US party.155

The ability to access data stored by social media or website providers is governed

by the terms of the contracts involved and may not be available by subpoena of the

provider. However, courts routinely avoid these issues by compelling the party

involved to authorize or consent to requests, under their authority, for access, whether or

not a subpoena would be effective.156

SCA warrants for production of the contents of

email stored in servers outside the United States have granted despite the doctrine of

extraterritoriality.157

Under Rule 26(b)(2)(C)(iii), the duty to respond to a discovery request is limited

by the doctrine of “proportionality,” a rule-based doctrine added to the Federal Rules in

151

ESI subject to subpoena is generally - but not fully - subject to analogous provisions of Rule 45. 152

See, e.g., Section 4.9 (Discovery Sanctions) and Section (6) Counsel Responsibility. Two key cases

are from the Southern District of Ohio: Bratka v. Anheuser-Busch, 164 F.R.D. 448 (S.D. Ohio 1995) and

Brown v. Tellermate Holdings, 2014 WL 2987051 (S.D. Ohio July 1, 2014). Other cases are collected at

the two Sections cited. 153

The pending amendments would delete this option as unnecessary. 154

Ex parte BASF Corporation, 957 So.2d 1104 (Oct. 27, 2006). 155

Societe Nationale Industrielle Aereospatiale v. US District Court, 482 U.S. 522, 543-544 (1987). 156

Mintz v. Mark Bartelstein, 2012 WL 3553351, at *5 (S.D. Cal. Aug. 14, 2012)(party may be compelled

to seek content of text messages within his “control” from wireless provider even though subpoena may

legally seek only subscriber information under SCA). 157

In re Warrant to Search E-Mail account, 2014 WL 4629624 (S.D. N.Y. Aug. 29, 2014), aff’g, sub nom,

2014 WL 1661004 (S.D. N.Y. April 25, 2014)(Francis, J.)

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1983 to “to guard against redundant or disproportionate discovery.”158

A court must limit

discovery if the “burden or expense of the proposed discovery outweighs its likely

benefit,” taking into account “the needs of the case, the amount in controversy, the

parties’ resources, the importance of the issues at stake in the action, and the importance

of the discovery in resolving the issues.”

A practical problem in applying proportionality is that it often is invoked before

the issues are fully formed. The Supreme Court once cautioned that “[a] magistrate

supervising discovery does not – cannot – know the expected productivity of a given

request” and rules “calling on judges to trim back excessive demands, therefore, have

been, and are doomed to be, hollow.”159

As ESI has assumed importance, claims of proportionality have become more

common. In McPherson v. Canon Business Solutions,160

the court found that wide-

ranging discovery was “unjustified.”161

In United States v. University of Nebraska, the

court rejected the argument that a clawback mechanism would ameliorate the burdens of

disproportionate discovery requests.162

The court also noted that requests to search large

volumes of ESI are only “one discovery tool,” and other methods, including targeted

document requests, interrogatories and deposition often suffice “with far less cost and

delay.”163

In Ewal v. Royal Norwegian Embassy, the court refused to apply proportionality

principles to limit production of responsive text and voice messages from certain “work-

provided” mobile phones.164

States

States typically include proportionality considerations in their civil rules and some

have undertaken steps to further emphasize proportionality in their discovery processes.

Utah,165

Minnesota166

and, most recently, Illinois,167

have adopted changes to place

additional emphasis on proportionality in discovery.

158

Committee Note, Rule 26 Subdivision (b), 97 F.R.D. 165, 217 (1983). 159

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560 (2007). 160

2014 WL 654573, at *6 (D. N.J. Feb. 20, 2014)(acknowledging its responsibility to limit discovery “if

the discovery is not proportional to the likely benefit of the evidence sought and the burden imposed on

[the] defendant”). 161

Id., at *9-10. 162

2014 WL 4215381, at *6 (D. Neb. Aug. 25, 2014). 163

Id. at *7 (invoking Rule 1’s promotion of “the just, speedy, and inexpensive determination” of cases). 164

Ewald v. Royal Norwegian Embassy, 2013 WL 6094600, at *7 (D. Minn. Nov. 13, 2013). The court

did not, however, require production of the personal mobile devices belonging to other witnesses. Id. at

*10. 165

UTAH R. CIV. P. 26(b)(1)(“[p]arties may discover any matter, not privileged, which is relevant to the

claim or defense of any party if the discovery satisfies the standards of proportionality”). 166

MINN. R. CIV. P. 1 (costs and the process must be proportionate); R. 26.02(b)(scope of discovery must

“comport with the factors of proportionality [listed]”). 167

ILCS S. Ct. Rule 201(c)(3), as amended by Ill. Sup. Ct. Order 0009 (C.O. 0009).

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Local Rules & Guidelines

Many local rules and protocols provide lists of categories of ESI which are

presumptively not subject to discovery. Principle 2.04 of the Seventh Circuit E-

discovery Pilot Program identifies deleted or unallocated data on hard drives, RAM,

temporary files, frequently updated metadata, duplicative backup data and forms of ESI

requiring “extraordinary affirmative measures” as not requiring production.168

Other local initiatives suggest use of agreements which list similar items as

presumptively not discoverable and need not be preserved unless attention is called to the

issue.169

When Illinois amended its discovery rules in 2014 to add a proportionality

standard, it explained in a Committee Comment that “[the analysis called for] often may

indicate that [certain listed] categories of ESI should not be discoverable,” cross-

referencing the approach of the Seventh Circuit E-Discovery Principles, and suggesting

that any request for preservation or production of burdensome categories of ESI should

be addressed at the initial case management conference.170

Proposed Amendment to Rule 26(b)(1)

A current proposed amendment before the Supreme Court is designed to more

clearly emphasize the role of proportionality by revising Rule 26(b)(1) so as to make

discovery “proportional to the needs” of the case, considering a slightly modified list of

factors moved into the rule from Rule 26(b)(2)(C)(iii).

The proposal was opposed by academics and plaintiff’s counsel during public

comments based on concerns that modification of Rule 26(b)(1) would unfairly “shift the

burden” of proving that requested discovery was not disproportionate to requesting

parties.

After some modifications in response, the current proposal for amended Rule

26(b)(1) will permit a party to “obtain discovery regarding any non-privileged matter that

is relevant to any party’s claim or defense and proportional to the needs of the case,

considering the importance of the issues at stake in the action, the amount in

controversy,171

the parties’ relative access to relevant information,172

the parties’

168

See [Proposed] Standing Order, Seventh Circuit E-Discovery Pilot Project, (listing six categories of ESI

whose possible preservation or production must be raised “at the meet and confer or as soon thereafter as

practicable”), copy at http://www.discoverypilot.com/ . 169

W.D. WASH. LCR 26(f)(1)(I) & Model Agreement (2012), copy at link on home page,

http://www.wawd.uscourts.gov/ (scroll to Court Forms, Model Agreement, ¶C(2) (listing eight categories

of ESI presumptively deemed not reasonable accessible under the Agreement). 170

ILCS S. Ct. Rule 201(c)(3), as amended by Ill. Sup. Ct. Order 0009 (C.O. 0009), effective July 1, 2014. 171

The “amount in controversy” factor was moved to a secondary position behind “the importance of the

issues at stake in the action.”

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resources, the importance of the discovery in resolving the issues, and whether the burden

or expense of the proposed discovery outweighs its likely benefit. Information within

this scope of discovery need not be admissible in evidence to be discoverable.” (new

material underlined).

The balance of current Rule 26(b)(1) would be deleted. This includes the list of

examples173

along with the authority to order “subject matter” discovery for good

cause.174

Also deleted would be the statement that “[r]elevant information need not be

admissible at trial if it is “reasonably calculated to lead to admissible evidence,” because

it has been used, incorrectly, to define the scope of discovery.175

Rule 26(b)(2)(C)(iii) would be modified to permit direct invocation of

proportionality by motion176

when "the burden or expense of the proposed discovery is

outside the scope permitted by Rule 26(b)(1).” (new matter underlined).

The proposed Committee Note stresses that the relocation of the proportionality

factors into the “scope” rule [from their current location in Rule 26(b)(2)(C)(iii)] does not

place the burden of addressing “all proportionality considerations” on the party seeking

discovery.177

The proposed Committee Note also explains that the change is “not intended to

permit the opposing party to refuse discovery simply by making a boilerplate objection

that it is not proportional.”178

(4.2) Inaccessible ESI

In the 1997 decision in Concord Boat v. Brunswick, a court refused to order

production from backup media utilized for disaster recovery purposes citing the

proportionality factors in Rule 26(b)(2). The court concluded that under the facts of that

case, the “potential gains” were questionable, and that the costs necessary to make the

information available were “hardly” worth it.179

172

A new factor added to provide “explicit focus” on the need to deal with “information asymmetry.” See

June 2014 RULES REPORT, Committee Note, at B-40-41 (“the burden of responding to discovery lies

heavier on the party who has more information, and properly so”). 173

Rule 26(b)(1)(“including the existence, description, nature, custody, condition, and location of any

documents or other tangible things and the identify and location of persons who know of any discoverable

information”). 174

June 2014 RULES REPORT, Committee Note, at B-43 (the language is rarely invoked and “[p]roportional

discovery” suffices). 175

Id., at B-44. 176

McPherson v. Canon Business Solutions 2014 WL 654573, at *3 (D. N.J. Feb. 20, 2014)(“a motion to

limit discovery”). 177

June 2014 RULES REPORT, Committee Note, at B-39 (“the change does not place on the party seeking

discovery the burden of addressing all proportionality considerations”). 178

Id. (“[t]he parties and the court have a collective responsibility to consider the proportionality of all

discovery and consider it in resolving discover disputes”). 179

1997 WL 33352759, at *9 (E.D. Ark. Aug. 29, 1997).

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Six years later, in Zubulake I,180

also citing “‘proportionality,’”181

a court ruled

that production from certain types of storage media should be presumptively limited

because of undue burden and expense. The Zubulake court identified “[f]ive categories

of data . . . from most accessible to least accessible” with only “backup tapes” and

“erased, fragmented or damaged data” falling within the least accessible category.182

The decision famously turned on whether the information was “kept in an accessible or

inaccessible format” because that distinction “corresponds closely to the expense of

production.” (emphasis in original).183

The Court also developed a multi-factored test to determine if production from

inaccessible sources would impose such an “undue burden or expense” that cost-shifting

should occur.184

This cost-shifting aspect of the Zubulake I opinion (and that of

Zubulake III, where it was applied) is discussed in Section 4.7, below.

The 2006 Amendments enshrined a similalr distinction, somewhat modified, in

the civil rules as Rule 26(b)(2)(B). It limits the need to produce (but not necessarily to

preserve)185

ESI found in sources which “the party identifies as not reasonably accessible

because of undue burden or cost”186

unless the requesting party shows “good cause,

considering the limitations of [proportionality].”187

An identical presumption was also

incorporated in Rule 45(d)(1)(D) for persons responding to a subpoena.

The court is authorized to “specify conditions” for the discovery if production is

ordered for “good cause.” According to the Committee Note, the conditions may “take

the form of limits on the amount, type, or sources of information required to be accessed

and produced [and] may also include payment by the requesting party of part or all of the

reasonable cost of obtaining information from sources that are not reasonable

accessible.”188

The Rules Committee has described these provisions as promoting a “two-tiered”

approach so that information can be first provided from “easily accessed sources” before

“it is necessary to search the difficult-to-access sources.”189

As a practical matter,

180

Zubulake v. UBS Warburg (“Zubulake I”), 217 F.R.D. 309 (May 13, 2003). 181

Id., 316. 182

Id., at 319-320. 183

Id., 318. 184

Id., at 324. 185

Committee Note (2006), 234 F.R.D. 219, 337 (“[w]hether [a] party is required to preserve unsearched

sources of potentially responsive information that it believes are not reasonable accessible depend on the

circumstances of each case. It is often useful for the parties to discuss this issue early in discovery”). 186

Id. (“[w]hether [a] party is required to preserve unsearched sources of potentially responsive information

that it believes are not reasonable accessible depend on the circumstances of each case. It is often useful

for the parties to discuss this issue early in discovery”). 187

The Note lists seven “appropriate considerations” for determining “good cause,” primarily turning on

whether other sources of the ESI are available, but including references to the parties’ resources. Id., 338. 188

Id., 339. 189

Rules Committee Report, (2006), reproduced at 234 F.R.D. 219, 331 (2006)(discussing “examples” of

difficult to access storage backup tapes not susceptible to search; legacy data which is unintelligible on

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however, when courts find inaccessibility to exist under Rule 26(b)(2)(B), they also find

good cause to ignore that finding and order production if proportionality concerns are not

obviously present.

Some courts take a narrow reading of the provision as requiring a technologically

based accessibility restriction. In Chen-Ostger v. Goldman, Sachs & Co.,190

the court

refused to find inaccessibility under the Rule because the burdens involved in retrieving

the information did not result from a technological feature. Others, such as the Sedona

Conference, see the issue as involving the relative degree of undue burden and expense

untethered to the technology.191

That approach has been adopted by a New York State

Court.192

(4.3) Direct Access/Privacy

Parties to federal and state litigation often seek the ability to directly conduct

forensic examinations of ESI media so as to access deleted ESI or temporary files

relevant to some issue involving ESI. This can include demands that employees turn

over personal cell phones for examination, despite the sensitive issues of control and

privacy.193

Rule 34(a) was amended in 2006 to permit a party to “test, or sample any . . .

electronically stored information.” Rule 45 (a) provides the same opportunity as part of

the command in a subpoena. A typical approach is to create a forensic or mirror image

of the hard drive and to have it examined by third parties pursuant to a court order or

protocol outlining the process to be followed, including privilege review.194

However, there is no automatic right to compelled access to stored ESI. Direct

access is granted only if a producing party is unable or unwilling to meet its obligations

or when substantial discrepancies in production are shown. According to the 2006

current systems; deleted data requiring “modern form of forensics” to retrieve; and databases not

susceptible to query for certain forms of information). 190

2012 WL 3964742 (S.D. N.Y. Sept. 10, 2012). 191

The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of

Information that Are Not Reasonably Accessible 10 SEDONA CONF. J. 281, 289 (2009)(citing data

complexity issues). 192

Tener v. Cremer, 89 A.D. 3d 75, 931 N.Y.S. 2d 552 (App. Div. 1st Dept. Sept. 22, 2011)(“[t]he

prestigious Sedona Conference also recommends analyzing accessibility as a relative concept and includes

the ease with which the data can be searched as a factor”). 193

In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 WL 6486921, at *18 (S.D. Ill.

Dec. 9, 2013)(employees who fail to produce personal cell phones for examination for work related texts

threatened with contempt). 194

Townsend v. Ohio DOT, 2012 WL 2467047, at *5 (Ohio App. 10 Dist. June 28, 2012)( (“the process of

forensic or mirror imaging” involves “replicating all allocated and unallocated space on a computer hard

drive” [collecting federal and state cases”)..

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Committee Note, the amendment is “not meant to create a routine right of direct access to

a party’s electronic information system.”195

Requesting parties are most successful when able to demonstrate relevant

inadequacies in the preservation and production of email and documents. In Genger v.

TR Investors,196

for example, direct access was justified because of the absence of emails

which should have been on the server or workstations.197

In Procaps v. Patheon,198

a

court authorized a forensic search where testimony of deponents indicated inadequacies,

including the fact that counsel was unaware that its recommendation to impose a

litigation hold was not followed.

However, in Yosif Bakhit and Kiyada Miles v. Safety Marking,199

the court denied

direct access to cell phones without evidence that less intrusive means - including the

seeking of data from the carriers involved (with permission) – had been ineffective.

Privacy

Understandable concerns exist about the impact of direct access on the privacy of

personal or trade secret material that may be intermingled with relevant and discoverable

information, especially in social media, cell phones, personal computers and the like.200

Where the means of communication are furnished by employers, courts often find

a limited expectation of privacy.201

In Stengart v. Loving Care Agency,202

however, the

New Jersey Supreme Court denied access by applying a “reasonable-expectation-of-

privacy standard” which it derived “from the common law and Article I of the New

Jersey Constitution.203

A limited or qualified expectation of privacy can be lost by

195

Committee Note, Rule 34, Subdivision (a), 234 F.R.D. 219, 362 (2006); see also Steven S. Gensler,

Special Rules for Social Media Discovery?, 65 ARK. L. REV. 7, 23 (2012)(citing to In re Ford Motor Co.,

345 F.3d 1315, 1317 (11th

Cir. 2003)). 196

26 A.3d 180, 192 (Del. Sup. Ct., July 18, 2011). 197

Id. 192. 198

2014 WL 800468 (S.D. Fla. Feb. 28, 2014) 199

2014 WL 2916490 (D. Conn. June 26, 2014). 200

See Committee Note, Rule 34, Subdivision (a)(2006)(“[c]ourts should guard against undue intrusiveness

resulting from inspecting or testing such systems” which should not be regarded as constituting a “routine

right of direct access”). 201

City of Ontario v. Quon, 177 L.Ed.2d 216, 130 S.Ct. 2619, 2631 (2010)(employer furnished pager);

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. Aug. 22, 2008)(similar). 202

Stengart v. Loving Care Agency, 201 N.J. 300, 990 A.2d 650, 663 (S.C. N.J. March 30, 2010)( finding it

both subjectively and objectively reasonable that the former employee would expect e-mails exchanged

with her attorney “would remain private”). 203

Id., at 660 & n. 3 (referencing a “right to privacy” which “can be found” in Article I).

January 6, 2015

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waiver,204

however, or minimized when balanced against the need for accurate fact

finding inherent in the litigation process.205

These concerns have been highlighted by the landmark decision of the Supreme

Court in the Fourth Amendment context in Riley v. California,206

in which the Court held

that the interest in preventing destruction of evidence did not justify dispensing with

warrant requirements for search of cell phone data.

(4.4) Collection, Search & Review

Collection, review and production of ESI can require a producing party to deal

with massive volumes of duplicative information, often located in widely various forms

of media in varying locations, both in active systems, personal devices or “in the cloud.”

This is followed, typically, by further review for relevance and privilege prior to

production.

According to a RAND study, these traditional “costs of review constitutes

upwards of 73% of the total costs which must be absorbed, for the most part, by the

producing party. 207

The bulk of those costs involve the “review” phase.208

Collection

The initial step – collection of ESI - requires “discrete procedures” used for

collection that will produce a forensically sound version of the information that [is]

stored[d].”209

E-mail may be located in enterprise, personal, and cloud-based computer

systems and may be located in multiple locations with substantial duplication.

Technologists may be asked to image the entire contents of a custodian’s hard

drive or may only focus on “active” files that can be readily accessed, such as program

files, operating system files and user-created files. If the latter, it may be necessary to

decide whether to collect files in the “unallocated space.” Data mining forensic tools

204

Juror Number One v. Superior Court, supra, 206 Cal. App. 4th

854, 867 (C.A. 3rd

D. Aug. 22,

2012)(parties posting comments on Facebook give up privacy rights as if they had retained a copy of a

letter). 205

Mintz v. Mark Barusten, 2012 WL 3553351 (C.D. Cal Aug. 14, 2012), at *11 (disclosure of numbers,

dates, time, and duration of calls does not represent a significant intrusion of Plaintiff’s privacy since the

Court can issue an appropriate protective order). 206

134 S.Ct. 2473 (June 25, 2014). 207

Where the Money Goes: Understanding Litigant Expenditures For Producing Electronic Discovery,

RAND Institute for Civil Justice (2012), 97 (“the costs associated with large-scale document production

dominate total production expenditures”). 208

David Degnan, Accounting for the Costs of Electronic Discovery, 12 MINN. J.L. SCI. & TECH. 151, 160

(2011)( ascribing 58% of costs to review and 36% to processing, with only 4% to collection and 2% to

production). 209

Working Group, IT Technologies and How to Preserve ESI Cost Effectively, 40 WM. MITCHELL. L.

REV. 486, 494 (2014)(“[s]ervers, network shares, cloud storage areas, desktop and laptop computers, tablets

and other mobile devices, as well as countless other places where ESI is located”).

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enable extraction of photos (“MMS”) and emails. Tools which facilitate the preservation

and production of social media evidence are available and are “constantly” evolving.

Culling

Once collected, the data is reduced to a more reasonable group of reviewable

materials by culling methods so as to reduce duplicates and to eliminate file types not

required.

Search & Review

Typically, manual (“linear”) review, keyword searching and predictive coding or

some combination are further steps in the process of search and review leading up to

production. This involves implementing a search strategy, which may involve a

methodology using “search criteria” such as search terms.210

In smaller cases, and in the final stages of a larger review effort, the manual

review may involve contract lawyers, who may be located in the United States or outside

it, but whose use may present management and ethical issues.

Keyword Search. Keyword searching involves “searching ESI for potentially

relevant information by identifying words, groups of words, or both with Boolean

connectors.”211

Input from knowledgeable ESI custodians on the use of words and

abbreviations can be helpful to assure accuracy in elimination of “false positives,”212

as

can studying a sample of documents to be searched.213

Of course, the mere fact that a search term returns a particular document or ESI

does not meant that it is also relevant and discoverable.214

Search terms ignore obvious

variants and misspellings, and searches perform without the right tools can lead to

misleading results. It is not uncommon, therefore, for a requesting party to demand that

information collected be searched by use of its designated search terms.

In the case of In Re Serequel Products Liability Litigation, the court stressed that

“while key word searching is a recognized method,” its use “must be in a cooperative and

210

Treppel v. Biovail, 233 F.R.D. 363, 374-375 (S.D. N.Y. Feb. 6, 2006)(citing to Principle 11 of the

Sedona Principles). 211

Jennifer Keadle Mason and Nathan C. Platt, 53 No. 1 DRI for Def. 28 (2011) 212

William A. Goss v. Am. Mftrs. Mutual Insur., 256 F.R.D. 134, 135 (S.D. N.Y. March 19,

2009)(decrying “seat of the pants” efforts by lawyers in designing keyword searches without adequate

input from those who wrote the emails). 213

The Sedona Conference® Commentary on The Use of Search and Information Retrieval Methods in E-

Discovery, 8 SEDONA CONF. J. 189 (Fall 2007) and the Sedona Conference® Commentary On Achieving

Quality in The E-Discovery Process, 10 SEDONA CONF. J. 299 (Fall 2009). 214

Lewis v. Bay Industries, 2014 WL 4925483, at *12 (E.D. Wisc. Sept. 30, 2014)(“Lewis seems to

assume that if an email contained his key-word search terms, it was for that reason alone discoverable. But

search terms are to assist in locating . . .their presence does not by itself make a document relevant or

discoverable”).

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informed process” not one “under[taken] in secret.”215

A failure to consult on search

terms may affect the willingness of courts to order subsequent “do-overs.”216

That

proved to be the case in Swanson v. ALZA Corporation,217

where a party had already

produced 600,000 pages from ESI sources. In Cannata v. Wyndham,218

the court

appointed a Special Master with authority to set, determine and refine search terms.219

In contrast, the court in United States v. University of Nebraska,220

refused to

order use of “expansive ESI search terms” suggested by the requesting party since they

would retrieve documents “that have no bearing on this case.” In Thompson v. C& H

Sugar Company, it was held that“[t]he Court is not in the business of drafting e-discovery

search terms.”221

Some model orders and Local rule initiatives limit the numbers of suggestions for

keyword searches from requesting parties. The Delaware Default Standard, for example,

suggests that “a requesting party may request no more than 10 additional search terms to

be used in connection with an electronic search.”222

Predictive Coding. The winnowing of a large volume of potentially relevant

information223

can also be accomplished by “predictive coding,” which is a form of

“analytics”224

or “computer assisted review” [“CAR”].

In “predictive coding,” specialized software is used to produce a ranking of the

possible relevance of individual items based on searches using algorithms “trained” by

manually reviewed “seed sets.” While it may be used unilaterally, it is often governed

by a carefully negotiated protocol which identifies the roles of the parties and provides

for repetitive meets and confers. The protocol used in the Actos litigation, subsequently

tried to verdict without reported dispute over the efficacy of predictive coding, is

available for review.225

Magistrate Judge Peck famously concluded in the case of Da Silva Moore v.

Publicis Groupe226

that predictive coding “can (and does) yield more accurate results

215

244 F.R.D. 650, 662 (M.D. Fla. Aug. 21, 2007) 216

In re Nat’l Assn. of Music Merchants, 2011 WL 6372826 (S.D. Cal. Dec. 19, 2011). 217

2013 WL 5538908 (N.D. Cal. Oct. 7, 2013). 218

Cannata v. Wyndham, 2012 WL 528224, at *4 (D. Nev. Feb. 17, 2012). 219

Id. at *4 (providing detailed cost allocation provisions). 220

2014 WL 4215381, at *6 (D. Neb. Aug. 25, 20114). 221

2014 WL 595911, at *5, n. 6 (N.D. Cal. Feb. 14, 2014)(it is better for “cooperating [parties] to iron out

discovery wrinkles on their own” since the court “do not have resources police closely the operation of the

discovery process”) 222

D. DEL. DEFAULT STANDARD, supra, at http://www.ded.uscourts.gov/court-info/local-rules-and-orders . 223

Some argues that 50,000 documents represent a practicable minimum for predictive coding. 224

Bennet R. Borden and Jason R. Baron, Finding the Signal in the Noise: Information Governance,

Analytics, and the Future of Legal Practice, 20 Rich. J.L. & Tech. 7, *12 (2014). 225

In re Actos (Pioglitazone) Products Liability Litigation, 2012 WL 7861249 (W.D. La. July 27,

2012)(Order entering Protocol Relating to Production of ESI). 226

287 F.R.D. 182 (S.D. N.Y. Feb. 24, 2012), adopted sub nom. Moore v. Publicis Groupe, 2012 WL

1446534 (S.D. N.Y. April 26, 2012).

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than exhaustive manual review” of volumes of information.227

Some urge that a valid

process requires that a party employ a subject matter expert to conduct the training and

then sample the non-responsive documents to ensure that the predictive coding process is

working as desired.

Increasingly, federal and state courts have weighed in and supported its use.228

An open issue is whether a party must disclose the contents of the “seed set” of

documents used in the process. The court in In re Biomet M2a Magnum Hip Implant

Products229

denied such a demand because there is no right to recover irrelevant or

privileged documents. However, the court urged the producing party to identify the

specific discoverable documents it had used since “[a]n unexplained lack of cooperation”

can lead a court to question why the “uncooperative party is hiding something.”230

Another issue is whether courts should order the use of predictive coding over

objection. Some argue that courts “should not unnecessarily wade into the business of

prescribing the methods by which document searching and production should occur.”231

A Committee Note to one of the pending Federal Amendments, however, will suggest

parties should consider the opportunities to reduce costs by use of reliable “computer-

based methods of searching” information, especially in cases involving “large volumes”

of ESI.232

(4.5) Discovery on Discovery

Requesting parties increasingly seek to participate in the design of the discovery

process and seek court intervention to authorize their review when results are not to their

liking.233

This “discovery on discovery” is said to be justified only when there has been a

showing that the production has been incomplete. In Freedman v. Weatherford

International,234

Judge Francis stressed that since the rules “do not require perfection,” it

is not surprising that in large productions, “some relevant documents may have fallen

through the cracks.” The court cited to Hubbard v. Potter, in which the court noted that

227

See Maura Grossman and Gordon Cormack, Technology-Assisted Review in E-Discovery Can Be More

Effective and More Efficient Than Exhaustive Manual Review, 17 RICH. J. L. & TECH. 11, at 48 (Spring

2011)(describing comparisons between technology-assisted review and manual review). 228

Bridgestone Americas v. IBM, 2014 WL 4923014 (M.D. Tenn. July 22, 2014)(approving request to use

predictive coding “in reviewing something over two million documents for responsiveness”). 229

2013 WL 6405156 (N.D. Ind. Aug. 21, 2013). 230

2013 WL 2250603 (W.D. N.Y. May 21, 2013). 231

Cf. Olin Guy Wellborn III, The Federal rules of Evidence and the Application of State Law in the

Federal Courts, 55 TEX. L. REV. 371, 403-404 (1977)(some civil rules may sufficiently affects “primary –

nonlitigation related- conduct” so as to be prohibited by the Enabling Act). 232

2014 June RULES REPORT, at B-42. 233

Black & Veatch v. Aspen Insurance, 2014 WL 806122 (D. Kan. Feb. 28, 2014)(disputes involving how

best to search 350 GB of data gathered from “Documentum and 31 custodian hard drives, as supplemented

by 98.7 GBs produced from other litigation). 234

2014 WL 4547039, at *18 (S.D. Sept. 12, 2014)(refusing to find that 18 emails of dubious value secured

from third parties justified reopening discovery to focus on methods of search).

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“speculation” that there is more does not suffice since it that alone justified additional

discovery, “discovery would never end.”235

This issue implicates Sedona Principle Six, which provides that “[r]esponding

parties are best situated” to evaluate and choose the “procedures, methodologies, and

technologies” most appropriate to preserve and produce their own ESI.

(4.6) Form of Production

ESI is typically produced to a requesting party on electronic media such as a CD

DVD, or thumb drive or, if size warrants, a large capacity hard drive. There are a wide

variety of forms or formats of electronic information in use, however, for the contents of

the ESI itself.

The 2006 Amendments to Rules 34(b) and 45(d) require, in the absence of

agreement or a court order, that ESI be produced in the “form in which it was

maintained” or in a “reasonably usable form” if a party has not specify a form for

production.236

Sedona Principle 12 cites the same formulation, with amplification.237

Rule 26(f) was also amended to provide that the parties should discuss the issue of

form or forms of production at the initial “meet and confer” and Rule 16(b) provides for

inclusion of agreements as part of the scheduling order. Courts have not been

sympathetic to parties which do not take advantage of that opportunity and later seek a

“do-over” in another form.238

Absent agreement, courts often interpret the rules to require production in a

“native” format because it necessarily includes required metadata.239

Practical concerns

about inability to bates number are not “compelling reasons” for failure to produce in the

requesting parties preferred form.240

However, in the leading case of Aguilar v. ICE,241

citing to Sedona Principle 12,

the court noted, that even when native format production is requested, it is sufficient to

produce memoranda, emails and electronic records in PDF or TIFF format accompanied

235

247 F.R.D. 27, 29 (D.D.C. 2008). 236

Rule 34(b)(2)(E)(ii); accord Rule 45 (d)(1)(B). 237

In addition to the federal language, Principle 12 adds that it should “take[ing] into account the need to

produce reasonably accessible metadata that will enable the receiving party to have the same ability to

access, search, and display the information as the producing party where appropriate or necessary in light

of the nature of the information and the needs of the case.” The Sedona Principles, 60; copy at

file:///C:/Users/PC/Downloads/TSC_PRINCP_2nd_ed_607%20(1).pdf. 238

Kentucky Speedway v. NASCAR, 2006 WL 5097354 (E.D. Ky. Dec. 18, 2006)(“the issue of whether

metadata is relevant or should be produced is one which ordinarily should be addressed by the parties in a

Rule 26(f) conference”). 239

See, e.g., Romero v. Allstate Insurance Company, 271 F.R.D. 96, 108 (E.D. Pa. Oct. 21,

2010)(mandating production “in native format with their associated metadata” without analyzing types of

ESI involved or adopting earlier agreement on methodology). 240

Saliga v. Chemtura, 2013 WL 6182227, at *2 (D. Conn. Nov. 25, 2013). 241

255 F.R.D. 350 (S.D. N.Y. Nov. 21, 2008).

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by a load file containing searchable text and selected metadata.242

Imaged formats are

easier to redact than native formats and are “reasonably usable” if care is taken to

accommodate review needs.243

As a practical matter, parties usually agree to produce email and other document-

like images in a “reasonably usable” format such as PDF, TIFF, or JPEG files along with

an appropriate use of a “load file” to preserve search capability and specify the fields of

metadata to be included in load files.244

Spreadsheets, sound recordings, animated

content and other complex electronic presentations are often produced in “native” or

“quasi-native” format.

Paper (“hard copy”) production can also, by agreement, be used as a format for

production in smaller productions.

By Local rule or individual District or judicial initiatives, some guidance is also

provided on the topic. This may include alternative provisions for “normal” and “more

complex” cases and leave it to the parties to negotiate as needed.245

Process

A requesting party may, but need not, specify the form or forms in which

production is sought, and if it does, the producing party may object.246

If the party

objects, or no form is stated in the request, the producing party must, however, state the

intended production format it intends to use. This helps force preferences (and

objections) out for discussion at an early time, preferably leading to agreement or court-

ordered resolution.

Databases

Production of information found in databases poses unique issues.247

In the

Facebook PPC Advertising Litigation,248

production of a PDF of the text of a database

was unusable because it was not “formatted and [did] not include any field that describe

the text.”249

Parties often agree to produce reports generated from the database – rather

242

Id. at 356 (citing to Sedona Comment 12b Illus. i). 243

Cf. Chevron v. Stratus Consulting, 2010 WL 3489922 (D. Colo. Aug. 31, 2010)(searchable PDF not a

reasonably usable form where the respondents were on notice that authorship would be at issue). 244

See e.g., IN RE DU PONT C-8 PERSONAL INJURY LITIGATION, ¶ 3 (Form of Production). 245

Model Protocol, W.D. Wash, ¶ E (3) &(4); copy at http://www.wawd.uscourts.gov/news/proposed-local-

rule-changes (scroll to proposed Model Protocol). The Model Protocol also provides alternative

instructions for more complex cases, including such details as appropriate software files for use with

Concordance® or Summation® review platforms. Also discussed is the use of OCR technology for

scanning of hard copy documents, with appropriate cross reference files. See ¶¶ 2-4 of Section II. 246

Rule 34(b)(2)(D). No comparable objection process is included in Rule 45. 247

For a detailed discussion of this complex topic, see the Sedona Conference® Database Principles

(March 2011 Public Comment Version)(copy available at http://www.thesedonaconference.org. 248

2011 WL 1324516 (N.D. Calif. April 6, 2011). 249

Id. at 4 (ordering consideration of alternatives such as the onsite review of the database or a pre-loaded

computer with the data).

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than seek to produce the raw data - in order to retain control over proprietary software.

In Aguilar v. ICE, supra, the plaintiffs sought production from hierarchical databases, and

the court ordered the parties to run a live demonstration of reports from a database in a

training environment.250

Organization of Production

Historically, Rule 34(b)(E)(i) provides that a party “must produce documents as

they are kept in the usual course of business or must organize and label them to

correspond to the categories in the request.” (emphasis added) As Judge Facciola

explained in United States v. O’Keefe,251

this provision was added in 1980 to prevent the

producing party from purposefully rearranged documents prior to production. In 2006,

the Committee added (ii), which provides absent agreement, ESI must be produced in a

form or form in which it is maintained or which is reasonably usable.

In Venture Corp. v. Barrett,252

a court read the requirement in subsection (i) as

being equally applicable, absent agreement, to production of ESI. Other courts have

done the same, at least as to documents that were scanned for production as ESI.253

However, Anderson Living Trust v. WPX Energy Production254

more accurately

holds that subsection (i) applies only to production of hard-copy documents since ESI is

not a subset of documents and the “nimbleness of current search functionality with ESI

software” provides the equivalent organization guarantees in regard to ESI in subsection

(ii).255

(4.7) Privilege & Work Product

Under Rule 26(b), parties may obtain discovery of “nonprivileged” matter

meeting relevancy criteria. Otherwise discoverable material “prepared in anticipation of

litigation or for trial” by a party’s representatives, including an attorney, must be

produced only if substantial need is shown.256

If a party withholds information by claiming it is privileged or subject to

protection as trial-preparation material, the party must, under Rule 26(b)(5) [or, in the

case of a subpoena, Rule 45(d)(2)(B)], expressly make the claim and describe the

material not produced or disclosed.” The increased volumes inherent in ESI

250

255 F.R.D 350, 363 (S.D. N.Y. Nov. 21, 2008)(refusing metadata request for two databases because of

security concerns but seeking to accommodate as to third). 251

537 F. Supp.2d 14, 19 (D.D.C. Feb. 18, 2008)(“to prevent the juvenile practice” of rearranging

documents copied for the requesting party prior to production). 252

2014 WL 5305575 (N.D. Cal. October 16, 2014). 253

Enargy Power v. Xialong Wang, 2014 WL 4687542, at *4 (Sept. 17, 2014)(scanned documents are not

produced as kept in the usual course of business because it destroys their “natural organization”) 254

Anderson Living Trust v. WPX Energy Production, 298 F.R.D. 514 (D. N. Mex. March 6, 2014) 255

Id., 527. 256

Rule 26(b)(3)(Trial Preparation: Materials).

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productions have imposed sometimes unreasonable costs and complexities in the

preparation of document by document privilege logs.257

The routine production of ESI may inadvertently include material which is

potentially subject to a claim of privilege or work-product protection and which, if

produced without being logged, may “waive” that protection. Parties have historically

addressed this issue by voluntary non-waiver agreements, but more substantial resources

are often allocated prior to production to locate and withhold such matters so as to avoid

the risk of waiver of the privilege.

The 2006 Amendments partially addressed this issue by adding a mechanism in

Rules 26(b)(5) and Rule 45(d)(2) which mandated that a recipient of materials as to

which a claim of privilege or “trial preparation material” was made must promptly

“return, sequester, or destroy” copies of the material. The receiving party may not “use

or disclose” the information until the claim is resolved.258

Rules 26(f) and 16(b) were also amended to encourage parties to consider binding

agreements governing inadvertent disclosures. The Committee Note to Rule 26(f)

expressed the view that a “clawback” agreement should “in most circumstances” not be

deemed to have waived a claim of privilege or protection.259

However, since the Federal Rules did not (and could not)260

address whether

waiver occurred by inadvertent production, Congress addressed that issue separately by

enactment of Federal Evidence Rule 502 (“FRE 502”).261

The hope was that by

providing predictability, it would help reduce the exploding costs of pre-production

privilege review, thereby reducing the overall costs of dealing with privileged

information.

Two provisions address the topic. First, FRE 502(b) provides that a claim of

privilege or work-product protection is not waived if the disclosure is “inadvertent” and

the holder “took [both] reasonable steps to prevent disclosure” and to “rectify the error.”

Second, FRE 502(d) authorizes a court to “order that the privilege or protection is not

waived by disclosure” and FRE 502(e) provides that an agreement to that effect which is

incorporated into an order is “binding” on other parties, not just the parties to the

agreement.

257

Hon. John M. Facciola and Jonathan Redgrave, Asserting and Challenging Privilege Claims in Modern

Litigation: The Facciola-Redgrave Framework, 4 FED. CTS.L. REV. 19, 34 (2010)(“the jurist-author of this

article noted a number of years ago that he had ‘found privilege logs useless’”). 258

The Comments to the ABA Model Rule 4.4(b) and the related ABA Opinions 05-437 (2005) and 06-

440(2006) take the position that whether the return of privileged information is required is committed to the

receiving lawyer’s discretion, subject to procedural and evidentiary law. 259

Committee Note, Rule 26, subdivision (f) (2006), at 234 F.R.D. 219, 324. 260

Unlike other rules prescribed under the Rules Enabling Act, “rules governing evidentiary privilege must

be approved by an Act of Congress. 28 U.S.C. §2074(b).” Committee Note, FRE 502. 261

Act of Sept. 19, 2008, PL 110-322, 122 Stat. 3537. The rule was developed by the Advisory

Committee on Evidence Rules, approved by the Standing Committee and the Judicial Conference and

furnished directly to the Judiciary Committees of the House and Senate. See generally Letter Addendum

to Committee Note and Statement of Congressional Intent.

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In First Technology Capital v. JPMorgan Chase Bank, a court found that a waiver

had occurred despite FRE 502(b), even though the production was inadvertent, since

there was “hasty review and no functional measures” that would keep sequestered papers

separate.262

Other courts have similarly found that inadvertent production waived the

privilege under the rule.263

Some Commentators have criticized courts for demanding “near-perfection” and

thus preventing FRE 502 (b) from meeting the Congressional intent to “reduce the

anxiety and costs associated with privilege review.”264

However, in Rajala v. McGuire

Woods, the court ordered inclusion of a non-waiver provision in a protective order over

the objection of one of the parties.265

Courts have also approved such non-waiver provision over objection that the

producing party should simply “skip” any review and rely on non-waiver as protection.266

The proposed amendments to Rule 26(b) and 26(f) now pending before the

Supreme Court specifically encourage inclusion of agreements in an order “under Federal

Rule of Evidence 502.”267

Local Rules and Guidelines

Local Rules and guidelines encourage the use of FRE 502. The proposed Model

Stipulated Order for the Northern District of California268

provides, for example, that

“[p]ursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-

protected document, whether inadvertent or otherwise, is not a waiver of privilege or

protection from discovery in this case or in any other federal or state proceeding.”269

262

2013 WL 7800409 (E.D. Ky. Dec. 10, 2013)(accepting representation that the attorney “actually did turn

each page” the fact that he spent only 4.1 hours on 1500 documents but missed 45 privileged documents

made the court “dubious” that it was a reasonable investment of time to identify, study the author and

recipients, review the subject matter, assess for privilege, gauge for exceptions and make final decisions).. 263

Jacob v. Duane Reade, 2012 WL 651536, at *5 (S.D. N.Y. Feb. 28, 2012)(parties did not act promptly in

rectifying the inadvertent disclosure”). 264

See Paul Grimm et al., Federal Rule of Evidence 502: Has It Lived Up to Its Potential?, 17 RICH. J. L. &

TECH. 8, *2 & *50 (2011)(“Rule 502 will never reach its intended goal” of “encouraging use of computer

analytical review methodology if courts demand near-perfection in preproduction precautions”). 265

2010 WL 2949582, at *7 (D. Kan. July 22, 2010)(entering clawback order over objection which bars

waiver even if producing party “ha[s] not taken reasonable care to prevent disclosure”); see also Committee

Note to FRE 502 (“[p]arty agreement should not be a condition of enforceability of a federal court’s

order”). 266

Good v. American Water Works, 2014 WL 5486827 (S.D. W. Va. Oct. 29, 2014)(approving order over

objection by requesting parties that producing party should produce all documents without manual review

for privilege given protections of a 502(d) order). 267

June 2014 Rules Report, at B-27 and B-36. 268

[Model]Stipulated Order Re: Discovery of [ESI] for Standard Litigation, copy at

http://www.cand.uscourts.gov/eDiscoveryGuidelines (scroll to Model Stipulated Order). 269

See ¶ 8 (Documents Protected from Discovery).

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(4.7) Cost Shifting

The Supreme Court acknowledged in Oppenheimer Fund v. Sanders270

that “the

presumption is that the responding party must bear the expense of complying with

discovery requests, but he may invoke the district court’s discretion under Rule 26(c) to

grant orders protecting him from ‘undue burden or expense’ in doing so, including orders

conditioning discovery on the requesting party’s payment of the costs of discovery.”271

In Zubulake I,272

the District Court acknowledged the Oppenheimer case273

and

held that that cost shifting was appropriate only when an “undue burden or expense” is

involved, which it defined as involving the production of “inaccessible” ESI, since such

information “is not readily usable” in its current storage. Its definition of accessible ESI

include active, online data, near-line data and offline storage and archives.274

The case also cautioned that the cost-shifting “must be neutral,” which it defined

as resolving “close calls” in favor of the “presumption” that the responding party pays.275

Thus, the court announced a restrictive seven-factor test276

to be applied in determining

whether shifting should occur, which it used in Zubulake III.277

In doing so, it opined

that a producing party should always bear the costs of attorney review.278

As part of the 2006 Amendments, Rule 26(b)(2)(B) and Rule 45(d)(1)(D) were

famously added to provide a presumptive limitation on production of ESI from

inaccessible sources and to authorize a court to attach “conditions” if, for good cause,

production was nonetheless ordered. The Committee Note explains that this may

involve shifting some or all of the “reasonable costs of obtaining information from

sources that are not reasonably accessible,” but did not expressly exclude other occasions

to do so.279

Courts have applied the Zubulake limitations to core production costs have also

been widely followed in both federal in state courts. In U.S. Bank v. Greenpoint

Mortgage,280

for example, an Appellate court in New York endorsed the Zubulake

270

Oppenheimer Fund v. Sanders, 437 U.S. 340 (1978). 271

Id., 358. 272

Zubulake v. UBS Warburg, 217 F.R.D. 308 (S.D. N.Y. May 13, 2003) 273

Id., 316 274

Id., 319-320. 275

Id., 320. 276

Zubulake v. UBS Warburg, supra, 217 F.R.D. 308 at 322 (announcing a “new seven factor test” which

included 1) the degree to which the request is designed to cover germane information; 2) the availability

of information from different sources; 3) costs of production compared to amount in controversy; 4) or

resources of the party; 5) relative abilities to control costs; 6) importance of issues; 7) relative benefits, etc. 277

Zubulake v. UBS Warburg (Zubulake III), 216 F.R.D. 280, 284 (S.D. N.Y. July 24, 2003)( “[i]t is worth

emphasizing again that cost-shifting is potentially appropriate only when inaccessible data is sought”). 278

Id. at 289-290. 279

Committee Note (2006), 234 F.R.D. 219, 338 (2006). 280

94 A.D. 3d 58, 939 N.Y.S.2d 395, 2012 N.Y. Slip Op. 01515 (App. Div. 1st Dept. Feb. 28, 2012).

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approach to the topic. Many Local Rules acknowledge the viability of potential cost-

sharing, albeit on a voluntary basis.281

Proposed Amendment to Rule 26(c)

As a result, one of the proposals currently before the Supreme Court is to amend

Rule 26(c)(1)(B) to acknowledge that a protective order issued for good cause to protect a

party from undue burden and expense may specify terms, “including time and place or

the allocation of expenses, for the disclosure or discovery[;].” There is no limitation to

types or sources of the information subject to discovery.

The proposed Committee Note explains that “[a]uthority to enter such orders is

included in the present rule” and that courts “already exercise this authority,” but that

“[e]xplicit recognition will forestall the temptation some parties may feel to contest this

authority.”282

Requester Pays Paradigm

Lawyers for Civil Justice supported the adoption of the proposed amendment to

Rule 26(c) as a “small step towards our larger vision of reform,”283

while from the point

of view of others, “the Advisory Committee is taking another step down the road to . . .

shifting to plaintiffs the defendants’ cost of responding to discovery [since the requesting

party will ‘normally’ be the plaintiff].”284

LCJ has long argued that a more suitable

paradigm is one where a “requester pays” to help reduce the incentive to impose

“excessive” costs associated with discovery, especially e-discovery.285

After reviewing the criticism of the proposal by the plaintiffs’ bar during the

public comment period, the proposed Committee Note was further amended to state that

“[r]ecognizing the authority to shift the costs of discovery does not mean that cost-

281

D. WYO. L.R 26.1(e )(2) & 26.2 (“cost sharing” should be discussed at Rule 26(f) conference). 282

Committee Note, at B-45. This may have been a reaction to Zubulake I and III and its progeny which

imply that courts lack authority to do so if the information sought not inaccessible. 283

Comment, Reducing the Costs and Burdens of Modern Discovery, August 30, 2013, at 19-20 (arguing

that it will place requesting parties on notice that they “may be required to bear the costs of responding to

their requests, and thus encourage more careful deliberation regarding the true needs of the case”); copy at

http://www.lfcj.com/uploads/3/8/0/5/38050985/lcj_comment_to_advisory_committee_on_civil_rules_8.30.

13.pdf. 284

Patricia W. Moore, “Corporate and Defense Perspective” Prevails in the Proposed Step Toward Cost-

Shifting in Rule 26(c),” September 11, 2014, (arguing that the Federalist Society and LCJ “have taken

control of the federal rulemaking process”); copy at

http://lawprofessors.typepad.com/civpro/2014/09/corporate-and-defense-perspective-prevails-in-the-

proposed-step-toward-cost-shifting-in-rule-26c.html. 285

See, e.g., LCJ Comment, Now is the Time For Meaningful New Standards Governing Discovery,

Preservation, and Cost Allocation, March 15, 2012, 1, Addendum to Agenda Materials, copy at

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2012-

03_Addendum.pdf. (scroll to Tab A-5, at 85 of 156).

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shifting should become a common practice” and that “[c]ourts and parties should

continue to assume that a responding party ordinarily bears the costs of responding.”286

The May 2014 Report of the Rules Committee to the Standing Committee noted,

however, that the Discovery Subcommittee plans to explore “whether it may be desirable

to develop more detailed provisions to guide the determination whether a requesting party

should pay the costs of responding.”287

Other Types of Cost-Shifting

Some courts have shift costs as part of active class management, unrelated to

protective orders. In Boeynaems v. LA Fitness Int’l,288

for example, a District Court

judge ordered the pre-payment of the costs of additional discovery where plaintiffs had

“already amassed, mostly at Defendant’s expense, a very large set of documents that may

be probative as to the class action issue.”289

In Cannata v. Wyndham, if the numbers of

search terms required of the producing party exceeded 40, then the plaintiff would be

required to pay part of the costs fairly attributable to the searches.290

Similarly, In Treppel v. Biovail, a court held that it could condition an order of

preservation on the requesting party “assuming responsibility for part or all” of the

expense of preservation of information.291

At least one Local Rule lists preservation as

among those discovery costs to be discussed for possible allocation.292

In North

Carolina, by statute, the costs of preservation as well as production may be included in

cost-shifting decisions.293

State Practice

A California appellate decision has required that production of ESI be at the

requesting party’s expense.294

In Texas, where unique e-discovery amendments preceded the FRCP changes,

ESI which is not “reasonably available” to a party “in its ordinary course of business”

286

Committee Note, at B-45. 287

May 2014 RULES REPORT, 11. 288

2012 WL 3536306, at *8 (Aug. 16, 2012). 289

Id. at *12 (“discovery burdens should not force either party to succumb to a settlement that is based on

the cost of litigation rather than the merits of the case”). 290

2012 WL 528224, at *5 (D. Nev. Feb. 17, 2012)(ordering appointment of a Special Master to supervise

use of search terms with authority to allocate costs of e-discovery). 291

233 F.R.D. 363, 373 (S.D. N.Y. Feb. 6, 2006)( where the information is “costly to retain” but of “only

marginal relevance”). 292

D.N.J. CIV. RULE 26.1(d). 293

Rules Civ. Proc. G.S. § 1A-1, Rule 45(d)(4) [“NCRCP Rule 45”](the court may require the party

seeking discovery to “bear the costs of locating, preserving, collecting , and producing the [ESI]

involved”). 294

Toshiba America v. Superior Court, 124 Cal. App. 4th

762, 770, 21 Cal. Rptr. 3d 532 (C.A. 6th

Dist.

2004)(statute reflects legislative determination that burden is on producing party from the outset and is not

dependent on showing of undue burden or expense in contrast to federal rules).

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must be produced unless an objection is lodged, in which case the costs of any

“extraordinary steps” required to “retrieve and produce” the information must be

reimbursed.295

Texas practitioners argue that the rule encourages proportional

discovery, with parties and courts understanding their obligation to avoid abusive over-

requests.

Taxing Costs

In Federal Courts, Rule 54(d) provides that costs other than attorney’s fees

“should be allowed to the prevailing party.” A similar approach applies in some state

courts. Under 28 U.S.C. § 1920(4), a clerk may “tax as costs” the costs of “fees for

exemplification [or] the costs of making copies of any materials where the copies are

necessarily obtained for use in the case.”

One court affirmed an award of $530,000 for the costs of “utilizing the expertise

of computer technicians in unearthing the vast amount of [ESI] sought by Plaintiffs in

discovery.”296

In Race Tire Americas v. Hoosier Racing,297

however, the Third Circuit

held that only costs attributable to scanning and preparation of material for production are

taxable, rejecting the argument that de-duplication, preparation of TIFF formats and

bates numbering constitute “exemplification” or “copies.”

Race Tire also held that Section 1920 was the sole source of authority to shift

litigation costs by taxation. It interpreted the reference to “copies” in Section 1920(4) as

applying “only [to] the cost of making copies” – not “all the steps that lead up to the

production of copies.”

(4.8) Discovery Sanctions

As in the case of sanctions for breach of the duty to preserve (spoliation),

sanctions for breach of discovery obligations may be imposed on a party, and/or its

counsel,298

as appropriate, under either Rule 37 or a court’s inherent powers.

In Bratka v. Anheuser-Busch,299

for example, the court criticized the failure of

outside counsel to provide oversight to the work of the in-house counsel responsible for

295

Texas R. Civ. P. 196.4 (1999); In re Weekley Homes, LP, supra, 295 S.W.3d 309 (S.C. Tex. 2009)(

“[w]e see no different in the considerations [between federal law and Texas principles] that would apply

when weighing the benefits against the burdens of electronic-information production”). The extent to

which automatic cost-shifting is actually occurring in Texas state courts is not known. 296

Tibble v. Edison, 2011 WL 3759927, at *6 (C.D. Cal. Aug. 22, 2011). 297

Race Tire America v. Hoosier Racing Tire, 674 F.3d 158 (3rd

Cir. March 16, 2012), cert. den. 133 S. Ct.

233 (Oct. 1, 2012). 298

Actions of an attorney are imputed to its clients for some purposes, but clients retain the right to institute

malpractice actions against counsel. See, e.g., Wade v. Soo Line, 500 F.3d 559, 564 (7th

Cir. Aug. 29,

2007)(affirming dismissal as sanction and noting that if plaintiff “has a claim, his remedy now is a

malpractice suit). 299

164 F.R.D. 448 (S.D. Ohio 1995).

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the grossly negligent execution of production responses, leading to a default judgment on

the issue of liability.300

In Wingnut v. Katja Motion Pictures,301

a party was sanctioned under Rule 26(g)

because its counsel failed to make a reasonable investigation and effort in order to

properly certify that all information which was responsive was provided.302

In the case of

In re September 11th

Liability Insurance Coverage,303

the court imposed substantial

sanctions jointly and severally under both Rules 11 and 37 for discovery misconduct of a

party and outside counsel.

Other cases involving sanctions imposed on counsel are discussed in Section

(5)(Counsel Responsibility).

Rule Based Sanctions

Rule 37 makes extensive provisions for failures to provide discovery including

provisions relating to counsel’s role in the process. While a court has broad discretion

when acting to impose sanctions pursuant to Rule 37, a “central requirement” is that the

sanction must be “just” and “guided by the “‘concept of proportionality’ between offense

and sanction.”304

In the case of ESI lost due to “routine, good faith” operation of

information systems, Rule 37(e) bars, absent exceptional circumstances, any sanctions.

Rule 37(b)(“Failure to comply with a Court Order),” provides a list of alternative

sanctions available for failures to obey an order to “provide or permit” discovery.305

Under Rule (b)(2)(C), a court is authorized to impose reasonable expenses, including

attorney’s fees, which are “caused by the failure.”

Rule 37(b) applies to any order that gives “clear notice of the discovery activity to

be performed,” including, where applicable, orders directing parties to preserve

information.306

Courts, in recognition of the intimate relationship between preservation

and production, often intermingle criticisms of conduct of both. In Hosch v. BAE

300

Id., 460 – 461 (“[t]rial counsel permitted the defendants, through its general counsel’s office, to

undertake total responsibility [but] . . . must exercise some degree of oversight to ensure that their client’s

employees are acting competently, diligently and ethically in order to fulfill their responsibility to the

Court”). 301

2007 WL 2758571 (C.D. Cal. Sept. 18, 2007). 302

Id., at *20 (finding sanctions to be mandatory because the violation was without “substantial

justification”). 303

243 F.R.D. 114, 131-133 (S.D. N.Y. June 18, 2007)(allowing request for conference to discuss

allocation). 304

Dinkel v. Medstar Health, 2014 WL 2885692, at *3 (D.D.C. June 26, 2014)(request for dismissal as

sanction denied as not appropriate under the circumstances, citing to Bonds v. D.C., 93 F.3d 801, 808 (D.C.

Cir. 1996)). 305

The initial proposal to replace Rule 37(e)(2013) relied upon the list as illustrative of sanctions, to which

the proposed rule added “adverse inference” instructions which is not included, presumably because it was

more associated with evidentiary issues relating to failures to preserve. 306

Steven S. Gensler, Rule 37, 1 Federal Rules of Civil Procedure, 8 (2014)(noting that rule also applies to

orders relating to discovery planning and orders granting motions to compel).

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Systems,307

a failure to produce an iphone and Blackberry for forensic examinations

resulted in defendant being “crippled” in its ability to properly prepare its defenses and

caused the court to dismiss the action under Rule 37(b).308

In Turner v. Hudson,309

“[e]ven though a party may have destroyed evidence prior to issuance of the discovery

order and thus be unable to obey, sanctions are still appropriate under Rule 37(b) because

this inability was self-inflicted.”310

Rule 37(c) authorizes sanctions for a party’s failure to “provide information or

identify a witness as required by Rule 26(a) or (e) [dealing with supplementation

obligations].” In the case of In re Delta/AirTran Baggage Fee Antitrust Litigation, the

court assessed sanctions under Rule 37(c) and Rule 26(g) where production was delayed

because Delta and its counsel had failed to ensure that all “collected hard drives were

actually searched,” missed copies in an evidence locker and “for its myriad inaccurate

representations.”311

Rule 37(d) authorizes sanctions for failures to participate in depositions, serve

answers or respond to requests for inspection. In Surowiec v. Capital Title Agency,312

the court awarded Rule 37(d) sanctions in the form of fees and expenses where an

“unreasonably narrow search” for ESI using only Plaintiff’s name and escrow number”

was “inexcusable.”

Inherent Power Sanctions

In Chambers v. NASCO,313

the Supreme Court explained that the “inherent power

extends to a full range of litigation abuses,”314

not just spoliation, and it may be invoked

“even if procedural rules exist which sanction the same conduct.”315

The test is said to be that, “if in the informed discretion of the court, neither the

statute316

nor the Rules are up to the task, the court may safely rely in its inherent

power.”317

Some courts interpret Chambers v. NASCO as making their inherent

sanctioning authority available only when “bad faith conduct [has] affected the

307

2014 WL 1681694 (E.D. Va. 2014). 308

The court also awarded attorney fees under Rule 37(d)(3) since the failure was not substantially justified

and an award would not be unjust. 309

142 F.R.D. 68 (S.D. N.Y. Sept. 27, 1991). 310

Id., 72. 311

846 F. Supp.2d 1335, 1349-1351 (N.D. Ga. Feb. 3, 2012)(imposing cost of attorney fees caused by

failure and ordering that discovery be re-opened). 312

790 F. Supp. 2d 997 (D. Arizona, May 4, 2011). 313

Chambers v. NASCO, 501 U.S. 32, 46 (1991)(sanctioning scheme of the rules does not displace “the

inherent power to impose sanctions”). 314

Id., at 46. 315

Id., at 49. 316

28 U.S.C. § 1927 – imposing sanctions on attorneys – applies to particularly egregious conduct (bad

faith) by an attorney which vexatiously prolongs litigation. See Amlong & Amlong v. Denny’s, 500 F.3d

1230, 1242 (11th

Cir. Sept. 17, 2007)(where an attorney knowingly or recklessly pursues a frivolous claim

or engages n litigation tactics that needlessly obstruct the litigation of non-frivolous claims). 317

Id., at 50.

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litigation.”318

However, others – such as courts in the Ninth Circuit – appear to confine

that requirement to cases where attorney fees are being shifted as a sanction.319

In Metropolitan Opera Assn. v. Local Union 100,320

for example, the court

exercised its inherent power to enter judgment against a defendant which “in bad faith

failed[ed] to abide by the rules and fail[ed] to conduct themselves honestly.”321

When invoking inherent power to deal with discovery failures, a court must

“calibrate the scales to ensure that the gravity of an inherent power sanction corresponds

to the misconduct.”322

States

Some states have unique sanction provisions, such as California Code Civ. Proc.

§2023.030 which authorizes a range of penalties for conduct amounting to “misuse of the

discovery process.”323

That provision differentiates between “issue,” “evidence” and

terminating” sanctions, much as FRCP 37(b) implicitly does, and may, like it, also

require a predicate showing of violation of an order.324

Proposed Federal Amendments

By its express terms, the heightened culpability standard for case-dispositive

remedies for failures to preserve ESI in proposed Rule 37(e) are inapplicable to failures

to produce.

The word “Preserve,” for example, will replace “Produce” in title of the proposed

replacement Rule 37(e) and the introductory clause will unambiguously authorize the

listed measures (sanctions) only if ESI “that should have been preserved in the

anticipation or conduct of litigation is lost.”325

Nonetheless, because of the intimate relationship between preservation and

production, it would be consistent with the purpose of the Proposed Amendments for

courts to apply the same standards to discovery failures as to those attributable to an

underlying failure to preserve.

318

Rimkus v. Cammarta, 388 F. Supp.2d 598, 611 & 615 (S.D. Tex. Feb. 19, 1992). 319

Unigard Sed. Ins. v. Lakewood, 982 F.2d 363, 368, n. 2 (9th

Cir. 1992). 320

211 F.R.D. 178 (S.D. N.Y. Jan. 28, 2003)(granting judgment for liability through use of inherent power

as well as under Rules 26(g), 37 and statutory grounds). 321

Id., at 231. 322

Davis v. DC Child and Family Services Agency, at *7 (D.D.C. June 4, 2014)(awarding monetary

sanctions, not dismissal, since lack of actual prejudice, citing to Shepherd v. ABC, 62 F.3d 1469, 1474

(D.C. Cir. 1995)) 323

Code Civ. Proc. §2023.030. 324

Doppes v. Bentley Motors, 174 Cal. App.4th

967, n. 5, 94 Cal. Rptr. 3d 802 (C.A. 4th

Dist. June 8,

2009)(finding it unnecessary to decide if it had authority “to impose evidence or issue sanctions absent a

failure to obey an order compelling discovery” since Bentley had failed to obey several orders).. 325

June 2014 RULES REPORT, B-56 through B-67

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(5) Evidentiary Issues

The key evidentiary issues involving ESI are governed by the same Federal Rules

of Evidence and their state equivalents used for hard copy discovery. 326

In Lorraine v.

Markel,327

the court identified these as ones dealing with (1) relevance (2) authenticity (3)

the hearsay rule (4) the “best evidence” rule (5) and the rule balancing the probative

value and the danger of unfair prejudice.

Thus, courts rely heavily on rules such as Fed. Rule. Evid. 901 (hereinafter “FRE

____”)(“Authenticating or Identifying Evidence”)328

FRE 902 (“Evidence That is Self-

Authenticating”) and FRE 803 (“Exceptions to the Rule Against Hearsay”) for

evidentiary guidance for ESI authentication and admission.

Authentication

A precondition to the admission of relevant evidence is that the proponent has

produced sufficient evidence to show that the contents are what the proponent claims

them to be. FRE 901(a). Authentication merely requires prima facie proof of

genuineness, and FRE 104(a) provides that the court must decide any preliminary

question as to whether evidence is admissible.

E-mail, text messages and social media postings are not self-authenticating under

Rule 902, unlike newspapers or certified domestic records of regularly conducted

activity. FRE 902(6) and 902 (11). Nor are they listed in FRE 901(b) as examples of

evidence that presumptively satisfy the authenticity requirements (unlike evidence about

telephone conversations).

Instead, authenticity of ESI in the absence of identifying testimony is typically

accomplished by FRE 901(b)(4), which provides that authentication can be proven by

showing the “distinctive characteristics” such as the appearance, contents, substance,

internal patterns” and other characteristics.”

However, the mere fact that email purports to come from an individual with a

valid email address is not sufficient to authenticate its content. In Jimena v. UBS AG

Bank, a person bilked by a Nigerian bank transfer scam unsuccessfully sought to sue the

Bank by admitting evidence of e-mails purporting to be from a bank executive.329

The

326

Jonathan D. Frieden and Leigh Murray, The Admissibility of electronic Evidence Under the Federal

Rules of Evidence (hereinafter “Survey”), 17 RICH. J. L. & TECH. 5, at *2 (2010)(the application of

“traditional evidentiary principles will nearly always lead to the correct result). 327

241 F.R.D. 534, 538 (D. Md. May 4, 2007). 328

FRE Rule 901 (“authentication or identification” is “satisfied by evidence sufficient to support a finding

that the matter in question is what its proponent claims”). 329

2011 WL 2551413, at *3 (E.D. Calif. June 27, 2011)(granting summary judgment because while only a

prima facie evidence of authenticity is required it was not shown here).

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court held that the printed copies of the email provided “no unique characteristics” to link

them to the executive.

Posting on social media provide special issues because of the possibility that

others may have created the entry.330

Admissibility

Authenticated ESI evidence requires a showing of relevance under FRE 401 for

admissibility and provided that its probative value is not outweighed by a danger of

unfair prejudice, etc., as noted in FRE 403.

FRE 802, however, bars admission of hearsay evidence - as defined in FRE

801331

- unless it is authorized by the FRE 803 and 804 (“Exceptions to the Rule Against

Hearsay”) or other rules or federal statutes. FRE 803(6) is often sought to justify the

admission of Email and the like as a record of a regularly conducted activity.

FRE 803(6) is not, however, made applicable by the mere fact that email is

routinely used in a business context. In the Oil Spill cases, the court rejected the view

that email is “the modern equivalent of the interoffice memorandum” and required

individual attention to hearsay exceptions for each email.332

It must meet all five

elements of the amended Rule.

made at or near the time

in the course of regularly conducted activity

as a regular practice

shown by testimony or certification

without showing by opponent of a lack of trustworthiness

A typical “business records” decision illustrating the complexities invoved is

Guardian v. White, a decision from the Southern District of Ohio.333

In that case, the

court admitted documents (including copies of emails) and audio files maintained by an

insurer as business records under FRE 803(6) based on the FRE 902(11) certification

since the opponent had not presented evidence of any untrustworthiness.

However, the court excluded admission of certain statements in the emails offered

as to their truth because of the double hearsay rule, given that the declarants were not

employees acting pursuant to a regular business duty or to a contractual duty to supply

information. Nonetheless, the court acknowledged that the emails could be used for

330

Parker v. Delaware, 85 A.3d 682 (2014). 331

Rule 801 refers to statements outside the trial or hearing which is offered to prove the truth of the matter

asserted in the statement, but an opposing party’s statement is not hearsay if it is offered against the party

under listed conditions. 332

2012 WL 85447 (MDL No. 2179, E.D. La. Jan. 11, 2012)(requiring parties to stipulate as to

admissibility of email and email strings and submit remaining specific issues for determination). 333

2014 WL 4426185 (S.D. Ohio Sept. 9, 2014)(Black, J.)

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“non-hearsay purposes,” such as the notice by the insurer of the claim to beneficiary

status.

Potential Amendments

The Federal Rules Advisory Committee on Evidence decided at its October, 2014

Meeting to develop two proposed “self-authentication” provisions for ESI in amendments

to FRE902(13) (machine-generated evidence) and FRE902(14)(copies of devices, storage

media, etc.). After discussing adding possible amendments to FRE 901 to provide factors

of authentication in dealing with forms of ESI, the Evidence Committee decided, instead,

to issue a “best practices” manual dealing with the topic. 334

(5) Counsel Responsibility

Courts and ethical authorities have high expectations as to the role of counsel,

both inside and retained, in regard to e-discovery. In Board of Regents v. BASF,335

for

example, the court held that the amendments “placed – on counsel – the affirmative

duties to work with client” to “cooperatively plan discovery with opposing counsel”

under Rule 26(f).336

Similarly, the Committee Note to proposed Rule 37€ provides that “[i]t is

important that counsel become familiar with their clients’ information systems and digital

data - including social media – to address these issues [referring to preservation issue].337

Courts are prepared to insist on that performance. As noted in the case of In re

September 11th

Liability Insurance Coverage,338

“[d]iscovery is run largely by attorneys,

and the court and the judicial process depend upon honest and fair dealing among

attorneys.”339

Sanctions

Rule 26(g) provides that counsel’s signature on discovery responses certifies that

the lawyer has made a “reasonable inquiry” to assure itself that the client has complied

with the discovery rules.340

Some courts read the Committee Note to Rule 26(g) as

imposing a “broad duty” to make a reasonable investigation and are prepared to sanction

334

See Report, November 15, 2014; copy in January 2015 Agenda Book, Standing Committee, at

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Standing/ST2015-

01.pdf#pagemode=bookmarks. 335

2007 WL 3342423, at *4 (D. Nebraska Nov. 5, 2007). 336

Id., at *5. 337

2014 June RULES REPORT, Committee Note, B-62. 338

243 F.R.D. 114 (S.D. N.Y. June 18, 2007). 339

Id. at 143. 340

Rule 26(g)(“[b]y signing, an attorney . . . certifies that to the beset of the person’s knowledge,

information and belief formed after a reasonable inquiry: . . (B) with respect to a discovery request,

response, or objection, it is: (i) consistent with these rules . . . and (iii) neither unreasonable nor unduly

burdensome or expensive, considering the needs of the case (etc.)”).

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for discovery deficiencies in compliance with that obligation.341

Courts are also

prepared to exercise their inherent powers to sanction counsel.342

In Zubulake V,343

the court insisted on “active supervision” by counsel, specifying

the “steps that counsel should take to ensure compliance with the preservation

obligation.” Similar views had been earlier expressed in Bratchka v. Anheuser-Busch344

in the context of hard copy production obligations.

In that decision, the court held that trial counsel “must exercise some degree of

oversight to ensure that their client’s employees [including inside counsel] are acting

competently, diligently and ethically in order to fulfill their responsibilities to the

Court.”345

Like Zubulake V, however, Bratka did not sanction counsel.

A decade later, in Brown v. Tellermate Holding,346

outside counsel was required

along with its client to jointly pay the reasonable fees and costs incurred by the other

parties as a result of failures to adequately preserve and produce ESI from a web-based

provider (Salesforce.com). The Magistrate held that outside counsel had not made the

reasonable inquiries required by Rule 26(g) and should not have taken a client’s

representations about Salesforce.com at face value.347

Analysis of counsel responsibility is more complicated, however, when a “team”

effort of inside and outside counsel is involved and the client splits the responsibilities

among them. As the author has pointed out elsewhere,348

the role of retained counsel in

implementing a team-based approach is determined by the party, upon whom the

obligation to preserve lies.

In Qualcomm v. Broadcomm,349

harsh sanctions were originally imposed on

outside counsel because they “did not conduct a reasonable inquiry into the adequacy of

341

In re Delta/AirTran, 846 F. Supp.2d 1335, 1350-1351 (N.D. Ga. Feb.3, 2012)(finding that Delta – acting

through its counsel - did not “conduct a reasonable inquiry” because it “has not shown that it ever

confirmed” personally that hard drives were uploaded nor “tried to explain why counsel” did not check a

locker where backup tapes were later found). 342

Swofford v. Eslinger, 671 F. Supp.2d 1274, 1287-1288 (M.D. Fla. Sept. 28, 2009)(citing Zubulake V). 343

Zubulake v. UBS Warburg LLC (“Zubulake V”), 229 F.R.D. 422, 432 (S.D. N.Y. July 20,

2004)(“[o]nce a ‘litigation hold’ is in place, a party and her counsel must make certain that all sources of

potentially relevant information are identified and placed on ‘hold’”). 344

164 F.R.D. 448 (S.D. Ohio Dec. 11, 1995). 345

Id., 461 (entering default judgment for failure to produce relevant evidence to plaintiff and noting that

“trial counsel essentially abdicated all responsibility to the client’s in-house counsel” at corporate

defendants order to mitigate the cost of litigation). 346

Brown v. Tellermate Holdings, 2014 WL 2987051 (S.D. Ohio July 1, 2014). 347

Id., *19-21. 348

Thomas Y. Allman, Deterring E-Discovery Misconduct With Counsel Sanctions: The Unintended

Consequences of Qualcomm v. Broadcom, 118 YALE L.J. POCKET PART 161, 164 (2009)(“A client is

ethically entitled to limit the responsibility of retained counsel in regard to a discovery engagement, which

may well occur when teams of internal experts and vendors are involved”). 349

Qualcomm v. Broadcom, 2008 WL 66932 (S.D. Cal. Jan 7, 2008), vacated in part, 2008 WL 638108

(S.D. Cal. March 5, 2008)(modifying ruling to allow counsel to defend themselves despite attorney-client

privilege)

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[their client’s] document search and production and, accordingly, they are responsible

along with [their client] for the monumental discovery violation.” After several years of

hearings, however, the court concluded it had erred since the “discovery responses were

made after a reasonable, although flawed, inquiry and were not without substantial

justification.”350

Sanctions resting on inherent authority were also vacated because

“although a number of poor decisions were made, the involved attorneys did not act in

bad faith.”351

Ethical Issues

The Model Rules impose ethical obligations on Counsel relevant to the

management of e-discovery.

Competence. Model Rule 1.1 requires that a lawyer provide competent

representation, based on legal knowledge, skill and - since 2012 - “keep abreast of

changes in the law and its practice, including the benefits and risks associated with

relevant technology.” (new material underlined)352

There is evidence of the need for education on technology. In Brown v.

Tellermate Holdings,353

supra, the failure to understand about use of web-based services

or to even asking if preservation of existing data could be done354

“fell well below what is

required and expected of an attorney in this situation.”355

California has issued an Interim proposal356

on the topic, and much ink has been

spilled by courts and commentators alike on the topic.

Spoliation. Model Rule 3.4(a) of the ABA Code specifies that a lawyer “shall not

unlawfully [alter or destroy material] having potential evidentiary value” nor “counsel or

assist” another to do any such act.” An Ohio lawyer who willfully destroyed files

relating to his practice while in a dispute with his firm was held to have violated the rule

even though he was not acting in his professional capacity as an advocate at the time.357

Supervisory Counsel. Model Rule 5.2 provides for the supervisory responsibility

over subordinate lawyers.

350

Qualcomm v. Broadcom, 2010 WL 1336937, at *6 (S.D. Cal. April 2, 2010). 351

Id. 352

ABA Rules on Prof. Responsibility, Model Rule 1.1, Comment 8)(2012), amended copy at

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_

conduct/rule_1_1_competence.html. 353

2014 WL 2987051 (S.D. Ohio July 1, 2014) 354

Id. *25. 355

Id. *8. 356

See Interim Model Proposal, copy at

http://www.calbar.ca.gov/Portals/0/documents/publicComment/2014/2014_11-0004ESI03-21-14.pdf. 357

Disciplinary Counsel v. Robinson, 126 Ohio St. 3d 371, 933 N.E. 2d 1095, 1101 (S.C. Ohio Aug. 25,

2010)(imposing one-year suspension as sanction for, inter alia, destruction of firm documents). After

serving the one year the attorney was reinstated. 130 Ohio St. 3d 1210 (2011).

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In the matter of Estrada,358

the Supreme Court of New Mexico suspended an

attorney from practice where she acted improperly while under the supervision of an out-

of-state counsel.359

The Court held that the attorney had violated her duty of competent

representation, obstructed another party’s access to evidence and engaged in conduct that

misled the court.360

The Court conceded that it had no authority to discipline the out-of-

state lawyer and raised questions about the adequacy of the supervision by the local law

firm that employed the lawyer, while.361

Social Media. Social media evidence is assuming great importance in the trial

of cases, and the various issues involving counsel, including pretexting, have begun to

emerge in contradictory rulings from disciplinary authorities around the country.362

358

In the Matter of Michele Estrada, 140 N.M. 492, 143 P.3d 731 (S.C. N.M. 2006). 359

Id., at 741 (“Respondent allowed herself to be guided by an attorney who was not her supervisor and wo

did not have the same ethical responsibilities to the New Mexico judiciary”). 360

Because of mitigating circumstances, the suspension was deferred for one year and the attorney placed

on probation (with the inference that the suspension might be vacated upon successful completion). Id.

744-745. 361

Id. at 744 (“the law firm bears some responsibility [for ensuring she complied with the Rules of

Proffessional Conduct”] 362

Grubman and Snyder, Web 2.0 Crashes Through the Courthouse Door, 37 RUTGERS COMPUTER &

TECH. L. J. 156 (2011).

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APPENDIX

State-by-State Summaries

The status reported below is (hopefully) current as of January, 2015, but the

reader would be wise to check and verify when interested in a specific state. Individual

State summaries consistent with, but more fully descriptive in content, are provided in a

useful data base maintained available through WESTLAWNEXT.363

KLGates maintains separate databases with helpful links directly to Local Federal

District Court e-discovery initiatives364

and many State e-discovery rules and related

initiatives.365

1. Alabama. E-discovery amendments to the Alabama Civil Rules (“ARCP Rule __” or

“Ala. R. Civ. P. Rule ____”) became effective on February 1, 2010 with adoption of

essentially identical amendments to the similarly numbered Rules 16, 26, 33(c), 34 and

45.

2. Alaska. E-discovery amendments (“AK R RCP Rule ___” or “Alaska R. Civ. P.

____” became effective on April 15, 2009, adopting provisions equivalent to FRCP 16,

26, 33, 34, 37 and 45, similarly numbered in Alaska, but w/o a requirement of discussion

of preservation in Rule 26(f).

3. Arizona. E-discovery amendments (“AZ St. RCP R ____” or “Ariz. R. Civ. P. ___”)

became effective on January 1, 2008.

4. Arkansas. Arkansas adopted its core e-discovery amendments in a single rule (“Ark.

R. Civ. P 26.1” or “ARCP Rule 26.1”), effective on October 1, 2009.

5. California. E-discovery amendments (“C.C.P. § ____” ) or (“Cal Code Civ Proc §

___”) became effective on June 29, 2009 by amendments to the California Code of Civil

Procedure (via the “Electronic Discovery Act”). The California Rules of Court were

amended (“Cal. Rules of Court, Rule 3.724”) effective on August 14, 2009 to adopt a

“meet and confer” requirement regarding e-discovery, including issues relating to the

preservation of discoverable ESI, form of production, privilege claims and costs.

363

eDiscovery for Corporate Counsel: Chapter 26: eDiscovery in State Courts: A work in Progress,

EDISCCORP § 26.1 (2014). 364

Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues,

copy at http://tinyurl.com/LNw12-cp02. 365

Current Listing of States That Have Enacted E-Discovery Rules, copy at

http://www.ediscoverylaw.com/promo/state-district-court-rules/

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6. Colorado. Colorado has not enacted comprehensive e-discovery Amendments,

although it has amended C.R.C.P. 45 to accommodate the subpoena of information in

“electronic form.”

7. Connecticut. E-Discovery Amendments were included in the Connecticut “Practice

Book,” effective January 1, 2012 (“Ct. R. Super CT Civ 13- ___”) by a series of e-

discovery Amendments, which are cited, within Connecticut decisions, as “Practice Book

1998, § ___ .”

8. Delaware. Effective May 1, 2010, The Superior Court established a Commercial

Litigation Division, which adopted an Appendix B, E-Discovery Plan Guidelines. On

January 19, 2011, the Court of Chancery issued Guidelines for Preservation of [ESI].

9. District of Columbia. As of November, 2010, e-discovery revisions were approved

by the Superior Court and transferred to the Court of Appeals for final approval. Their

current status is unknown.

10. Florida. On July 5, 2012, the Florida Supreme Court adopted amendments to the

Florida Rules of Civil Procedure (“Fla. R. Civ. P. Rule ___”)(effective September 1,

2012), largely based on the 2006 Amendments. See Order, 2012 WL 2579681

(amended text).

11. Georgia. Status unknown.

12. Hawaii. Status unknown.

13. Idaho. E-Discovery Amendments to the Idaho Rules of Civil Procedure (“I.R.C.P.

Rule ____”) became effective in July, 2006, involving amendments to Rules 26, 33, 34

and 45.

14. Illinois. By Order effective July 1, 2014, Illinois adopted several amendments

relating to e-discovery including an enhanced proportionality standard in ILCS S. Ct.

Rule 201, accompanied by a Committee Comment noting that “[the analysis called for]

often may indicate that [certain listed] categories of ESI should not be discoverable,” and

suggesting early discussion at the initial case management conference. Illinois earlier

amended Rule 201 to provide for inadvertently produced discovery materials as well as

its Evidence Code to incorporate an equivalent to FRE 502.

15. Indiana. The Indiana E-Discovery Amendments (“In St Trial Procedure Rule ___ “)

became effective on January 1, 2008.

16. Iowa. E-Discovery Amendments in Iowa (“I.C.A. Rule ____”) or (“Iowa R. Civ. P.

____”) became effective May 1, 2008 based on the 2006 Amendments. Effective on

June 1, 2009, the Supreme Court adopted Iowa R. Evid. 5.502 (“I.C.A. Rule 502”), which

is essentially identical to Federal Evidence Rule 502. On August 28, 2014, the Iowa

Supreme Court adopt an Expedited Civil Action process and amendments to the civil

discovery rules. The Supreme Court also exercised its supervisory and administrative

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authority to approve forms for Trial Scheduling Orders which include provisions relating

to discovery of ESI.

17. Kansas. Effective July 1, 2008, Kansas adopted e-discovery amendments (“K.S.A.

“60-2__”) essentially identical to the 2006 Federal Amendments.

18. Kentucky. Status unknown.

19. Louisiana. In 2007, 2008 and 2010, the Legislature passed and the Governor signed

legislation which collectively provides comprehensive e-discovery Amendments (“LSA-

C.C.P. Art. ____”). In 2008, the Legislature added its counterpart to Rule 37(e) [Art.

1471(B)].

20. Maine. The Supreme Judicial Court adopted e-discovery amendments effective

August 1, 2009.

21. Maryland. E-discovery amendments (“MD Rules, Rule ____”) became effective on

January 1, 2008, primarily based on the provisions of the 2006 Amendments.

22. Massachusetts. The Supreme Judicial Court approved e-discovery amendments to

which became effective on January 1, 2014. The rules blend aspects of the 2006

Federal Amendments and the 2007 Uniform Rules Relating to the Discovery of [ESI]

(adopted by the Nat’l Conf. of Commissioners on Uniform State Laws).

23. Michigan. E-discovery Amendments became effective on January 1, 2009.

24. Minnesota. The Minnesota Supreme Court initially adopted e-discovery rules which

largely mirror the 2006 Amendments but, effective July 1, 2013, added amendments to

Rules 1 and 26 to provide for enhanced proportionality concerns as part of the scope of

discovery. See David F. Herr and Jolynn M. Markison, E-Discovery under the

Minnesota Rules, 40 Wm. Mitchell L. Rev. 390 (2014)

25. Mississippi. The Mississippi Supreme Court initially adopted a limited e-discovery

rule in 2003 (“M.R.C.P. Rule 26” or “Miss. R. Civ. P. 26(b)(5)”) and in October, 2012,

amended Rules 34 and 45 to reflect aspects of the federal approach.

26. Missouri. Status unknown.

27. Montana. E-discovery amendments to the Montana Civil Rules (“M.R.Civ.P., Rule

__” or “MT R RCP Rule ____”) were adopted by Order of February 28, 2007.

28. Nebraska. Limited E-discovery amendments to several Rules (“Neb Ct R Disc § 6-

334”) became effective in July, 2008 by action of Nebraska Supreme Court.

29. Nevada. Status unknown.

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30. New Hampshire. Amendments dealing with e-discovery in one Rule (“N.H. Super.

Ct. R 62”) became effective in March, 2007.

31. New Jersey. The New Jersey Civil Rules were amended effective September 1,

2006 and thus became the first state to incorporate the provisions of the 2006

Amendments.

32. New Mexico. Limited E-discovery amendments (“NMRA, R 1-___”) became

effective in May, 2009 by action of the New Mexico Supreme Court.

33. New York. There have been no changes to Article 31 of the Civil Practice Law and

Rules (“McKinney’s CPLR § ____”) to accommodate e-discovery. However, the

Uniform Rules for the New York State Trial Courts (“N.Y. Ct. Rules, § ___” or (NY CLS

Unif Rules, Trial Cts § ___”) were amended in connection with preliminary conferences

(Sec. 202.12(b) & (c)) in the regular and the Commercial Division of the Supreme Court

(Sec. 202.70(g)). Effective Sept. 2, 2014, Guidelines for Discovery of ESI from

NonParties become effective based on an Administrative Order of the Chief

Administrative Judge. New York appellate courts have adopted the principle that

“ordinary negligence may provide a basis for the imposition of spoliation sanctions,”

Pegasus Aviation v. Varig Logistica, 118 A.D. 3d 428, 987 N.Y.S. 2d 350, 356, 2014

N.Y. Slip Op. 04047 (App. Div. 1st Dept. June 4, 2014), including harsh sanctions of

dismissal where the loss “fatally compromised” the ability of a party to prove its claim or

defense, Lentini v. Weschler, __N.Y.S.2d __, 2014 N.Y. Slip Op. 0602 (App.Div. 2nd

Dept. Sept 10, 2014). However, while the Zubulake line of cases has been adopted as

applicable to ESI discovery (See U.S. Bank, 94 A.D. 3d 58, 939 N.Y.S. 2d 395 (1st Dept.

2012); Voom HD Holdings v. EchoStar Sattellite, 93 A.D. 33, 939 N.Y.S. 2d 321 (1st

Dept 2012); Tener v. Cremer, 89 3d 75, 931 N.Y.S. 2d 552 (1st Dept. 2011), in Strong v.

City of New York, 112 A.D. 3d 15, 973 N.Y.S.2d 152, 158 (App. Div. 1st Dept. Oct. 15,

2013), the court held that Zubulake was not needed in regard to destruction of audiotapes

and videotapes).

34. North Carolina. The legislature amended the Rules of Civil Procedure, effective

October 2011, to accommodate electronic discovery [Rules Civ. Proc., G.S. § 1A-1,

Rules 16, 26, 33, 34, 37 and 45 (2011)].

35. North Dakota. Amendments based on the 2006 Amendments became effective

March 1, 2008.

36. Ohio. Amendments to the Ohio Civil Rules (“[OH] Civ. Rule __”) 16, 26, 34, 37

and 45, largely based on the 2006 Amendments, became effective July 1, 2008.

37. Oklahoma. Oklahoma enacted e-discovery rules effective November 1, 2010 (“12

Okl. St. Ann. § ___”).

38. Oregon. Oregon enacted a single e-discovery amendment (with two changes)

effective January 1, 2012 (“OR Rules Civ. Proc., ORCP 43”).

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39. Pennsylvania. The Pennsylvania Supreme Court has enacted limited changes

dealing with ESI (“Pa. R. C.P. No. ____”) which became effective on August 1, 2012.

40. Rhode Island. Status unknown.

41. South Carolina. The Supreme Court adopted and sent to the Legislature E-discovery

Amendments (“SC R RCP Rule ___”) which became effective in April, 2011.

42. South Dakota. Status unknown.

43. Tennessee. E-discovery amendments (“TN Civil Procedure Rule ___”) became

effective on July 1, 2009. Effective July 1, 2010, Tenn R. Evid. Rule 502 was adopted

based on Fed. R. Evid. 502(b).

44. Texas. As part of the reform of Texas Civil Procedure code in 1999, a provision was

added dealing with electronic or magnetic data (“Tx. Rules of Civil Procedure, Rule

196.4”).

45. Utah. The Utah Supreme Court approved a set of e-discovery rules based on the

2006 Amendments, effective on November 1, 2007. In 2011, a comprehensive revision

of the discovery rules went into effect under which, among other changes, mandated that

discovery “satisfy the standards of proportionality.”

46. Vermont. Vermont promulgated rules based on the 2006 Amendments in May,

2009.

47. Virginia. Effective January 1, 2009, the Civil Rules were revised to include the

2006 Federal Amendments, except for the safe harbor provisions and “meet and confer”

obligations.

48. Washington. Effective on September 1, 2010, Washington adopted a modified

version of FRE 502, styled ER 502.

49. West Virginia. Status unknown.

50. Wisconsin. On April 23, 2010, a divided Supreme Court of Wisconsin adopted e-

discovery amendments.

51. Wyoming. The Wyoming Supreme court amended its Civil Rules to conform to the

2006 Amendments (“Wy R RCP Rule ___”) in its Rules 26, 33, 34, 37 and 45.

Thomas Y. Allman Tom Allman is a retired General Counsel of BASF Corporation, the North American arm of BASF SE, a German based chemical Company. At BASF, Tom served as Senior Vice-President, General Counsel and Chief Compliance Officer. Prior to retirement, he was an advocate of comprehensive federal and state rulemaking in his role as Chair of the Lawyers for Civil Justice E-Discovery Committee. He is Chair Emeritus of Sedona Conference® Working Group on Electronic Production and Retention (“WG 1”) and publishes and speaks nationally on the topic of e-discovery, corporate compliance and state e-discovery rulemaking. Prior to joining BASF, he practiced law as a partner in the Cincinnati office of Taft, Stettinius & Hollister. He is a graduate of the Yale Law School and the University of Cincinnati. He may be reached at tyallman@earthlink.net.