Draft Amendments to the ABA Civil Discovery Standards Addressing Electronic Discovery

by George Socha

New guidance is being proposed for lawyers faced with electronic discovery issues in the Federal court system. On Nov. 17, 2003, the American Bar Association Section of Litigation's Task Force on Electronic Discovery released draft amendments to Standards 29 and 30 of the Civil Discovery Standards and proposed three new standards. The Section of Litigation plans to submit the final version to the ABA House of Delegates for approval in August 2004.

Originally adopted by the House of Delegates in August of 1999 to address practical aspects of the discovery process not covered by state or federal rules of civil procedure, the standards have been outpaced by advances in electronic discovery issues and practices as well as changes in state and local federal rules. These revisions attempt to close that gap.

Revised Standard 29, which focuses on preservation and production of electronic information, would provide practitioners with a more extensive checklist of discoverable sources of electronic data and judges with factors to consider when deciding to what extent production should be ordered or costs shifted to requesting parties. Revised Standard 30 would make clear that courts could order discovery materials not stored in electronic form to be produced that way and would set a presumption that written discovery requests and responses should be exchanged in electronic form. New Standard 31 promoted early and frequent discovery conferences as a means of resolving electronic discovery disputes before they get too large or complicated. New Standard 32 attempts to deal with privilege and work product concerns. New Standard 33 is an attempt at giving the revised standards longer life, by asserting that they will apply to new forms of information storage - beyond paper and electronic - as they emerge.

These amendments will help move the proverbial ball forward but are far providing definitive answers in a field still in its early days. To mix metaphors unmercifully, practitioners should view the revisions as one more arrow in their quiver - one more source of guidance as they work to craft discovery approaches that meet the full range of their clients' needs.

Standard 29. Preserving and Producing Electronic Information.

Standard 29(a) focuses on the duty to preserve. The first proposed change to section (a) tries to eliminate the criticism that the standard takes a position as to substantive legal doctrines. It does this by removing the phrase "to take reasonable steps" from 29(a)(i), which currently states, "[a] party's duty to take reasonable steps to preserve relevant documents…also applies to information contained or stored in an electronic medium or format…."

The second proposed revision modifies and expands the list of potential sources of electronic discovery. In its current form, 29(a)(i) concludes with five examples of potentially discoverable electronic information: "a computer word processing document, storage medium, spreadsheet, database and electronic mail." That language is replaced with a new section 29(a)(ii) that lists 11 forms, platforms, or locations of electronic data that parties may need to preserve: databases, networks, computer systems, servers, archives, backup or disaster recovery systems, storage media, laptops, personal computers, internet data, and PDAs. While the list provides some guidance, it is far from exhaustive. A better approach might be to state that a party's duty to preserve electronic data applies without regard to the formats in which the data are stored, the devices on which the data are stored, or the media on which they are stored.

Next, section 29(a)(ii) is moved from section (a) to section 29(b)(i) - a better fit. Its focus has been shifted as well, away from directing that a request for "documents" covers information stored in electronic form unless it states otherwise, and toward exhorting parties to explicitly state whether they are seeking information in electronic form.

The final and most significant revision to section (a) is the 180° turn taken with 29(a)(iii). That section states that a responding party ordinarily has a duty to try to restore electronic information deleted or discarded in the regular course of business only if the requesting party can demonstrate substantial need. The revisions reverse that presumption, stating that "[e]lectronic data as to which a duty to preserve may exist include data that have been deleted but can be restored."

Section 29(b) examines discovery practices. Section 29(b)(i), changed to (ii), focuses on the form of production. It contains two sets of changes. The first replaces "may ask for" with "should consider asking for…." Of greater note, a new sentence has been added at the end, apparently intended to promote production of materials in electronic form: "A party who produces information in electronic form ordinarily need not also produce hard copy to the extent that the information in both forms is identical."

Section 29(b)(ii), changed to (iii), addressed motions to compel or protect discovery. Perhaps in response to the Rowe Entertainment and Zubulake decisions, the revised section now includes motions to reallocate the costs of discovery. It also enlarges on previously-listed factors for courts to consider when addressing such motions. At the same time, sections 29(b)(iii) and (iv) have been eliminated; they had discussed who should bear electronic discovery costs.

Standard 30. Using Technology to Facilitate Discovery.

Subdivision (a) of Standard 30 contains new language stating that parties may agree or the court may direct that discovery materials not stored electronically nonetheless should be produced in an electronic format. Subdivision (b) sets as a presumption that written discovery requests and responses will be exchanged in electronic form.

New Standard 31. Discovery Conferences.

The new Standard 31 seems to have been drafted in response to the April 14, 2003 Discovery Subcommittee Report on Electronic Discovery (available at http://www.kenwithers.com/rulemaking/report041403.pdf). This standard promotes discovery conferences as a means of resolving electronic discovery disputes before they assume gargantuan proportions. It encourages parties to address issues about the scope and type of materials to be discovered; preservation; sampling, searching and other means of reducing the volume; the use independent consultants; and forms of production.

New Standard 32. Attorney-Client Privilege and Attorney Work Product.

Previously mentioned only brief in 29(b)(ii), attorney-client privilege and attorney work product now have a standard of their own. Standard 32 suggests that parties stipulate to the entry of a court order (1) appointing an independent information technology consultant for reviewing protected data, (2) providing that work done by the consultant and production of privileged data would not constitute waiver, (3) setting review procedures, and (4) establishing destruction protocols. The standard does not - and presumably cannot - address to what extent these safeguards, if put in place in one case, would be respected by other courts in separate cases involving the party seeking protection.

New Standard 33. Technological Advances.

Standard 33 says that Standards 29 through 32 ought to apply to any new forms of information storage (beyond paper and electronic) that may be developed in the future.

Comments on the draft standards should be sent to either of the Task Force co-chairs, Gregory Joseph and Barry McNeil, or to any member of the task force. A full list of members accompanies the draft amendments.

George Socha is an attorney and consultant whose business, Socha Consulting LLC, helps inform digital discovery decisions. He provides consulting, expert witness and special master services in the area of electronic discovery. A frequent speaker and writer on issues relating to the use of technology in the practice of law, he is co-chair of the Glasser LegalWorks Electronic Discovery and Records Retention Conference, co-chair of the ABA Committee on Corporate Counsel's Subcommittee on Litigation Technologies and the ABA Pretrial Practice & Discovery Committee's Electronic Discovery Subcommittee, a member of the Board of Editors of LJN's Legal Tech Newsletter, and a regular contributor to Pike & Fischer's Digital Discovery & e-Evidence. He can be reached at george@sochaconsulting or 651.690.1739.

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