On
September 24, 2013, the Supreme Judicial Court of Massachusetts adopted
the amendments to the Rules of Civil Procedures that addressed discovery of
electronically stored information. This
new amendment, which will take effect on January 1, 2014, enables parties and the
court to deal with e-discovery during the early stages of litigation.[1]
The Reporter’s Note states, “the driving force behind the decision to consider
rules for electronic discovery in Massachusetts is the staggering growth of
information in electronic form today.”[2] To create this amendment the Standing
Committee drew on two primary sources: the 2007 amendments to the Federal Rules
of Civil Procedures that addressed electronically stored information and the
2007 Uniform Rules Relating to the Discovery of Electronically stored
information.[3]
So
what exactly does electronic discovery refer to? The SJC is referring to e-mails, web pages,
word processing files, computer databases, audio, video recordings, voicemails and
virtually anything that is stored on a computer.[4]
With this new addition to the discovery process also brings along the same
issue that occurs with paper discovery plus some that are specific to
e-discovery. [5]
For example, one of the major issues of incorporating electronic information is
the sheer volume of this type of information.[6]
In this day and age, e-mail has now replaced other forms of communication.[7]
Many informal messages that were once sent by telephone are now sent via-email.[8]
The problem with this is that computers have the ability to capture several
copies of that e-mail that was sent; which creates massive volumes of
documents.[9]
When comparing the sheer volume of data
with conventional documentation, it can be quite astounding.[10]
For instance, one gigabyte is equivalent of 5000,000 typewritten pages.[11]
Large corporate computer networks create backup data measured in terabytes, or
1,000,000 megabytes; each terabyte represents the equivalent of 500 billion
typed written pages of plain text. With the
ability to store information electronically, many companies have little to no
incentive to reject the information. [12]
Because
of the new e-discovery guidelines, attorneys will now have to scan those
multiple e-mails for relevant and privileged information.[13]
The new guidelines create a provision, in which a party is required to return
information that is mistakenly produced, if it’s privileged or work-product-information.[14]
This provision requires the party notify the other party and return, sequester,
or destroy the information at the party’s request.[15]
But there are some benefits to
the new discovery amendment. For instance, because huge amounts of information
can be store on compact disks or flash drives, transporting the large amounts
of information will no longer be as expensive or difficult.[16]
Attorneys requesting such documents will no longer have to worry about the
travel expenses associated with gathering hundreds of boxes of documents.[17]
With the new discovery process, an attorney can now review the documents from the comforts of his or her office. [18]
In addition, the changes allow for
the court to limit the frequency or extent of the discovery. The amendment
permits a party the ability to object on the grounds of inaccessibility, but
that party has the burden of proof.[19]
Inaccessible electronically stored
information is defined in the amendment as, “electronically stored information
from sources that the party identifies are not reasonably accessible because of
undue burden or cost.”[20]
The court can overrule this objection, if the requesting party can show “that
the likely benefit of its receipt outweighs the likely burden of it production,
taking into account the amount in controversy, the resources of the parties,
the importance of the issues, and the importance of the requested discovery in
resolving the issues.”[21]
Because the new rule allows for the scope of discovery to be “any matter, not privileged, which is
relevant to the subject mater involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim
or defense of any other party,”[22]
this objection can be very helpful to keep or limit the scope of
discovery.
Furthermore, with the Supreme
Judicial Court now expanding the scope of discovery to electronically stored
information, parties will either find this helpful or more burdensome.
Electronic discovery brings along the same issues that paper discovery
welcomes, along with a few other challenges, but by using some of the following
steps, one can limit the expenses of e-discovery.
- · Discovery requests can be more narrowly-tailored[23]
- · Figure out if larger volume of electronic evidence is worth the cost, and which party should bay for it [24]
- · Create a document retention policy[25]
Long story short -- There is a lot of reading for us all to do between now and January 1, 2014. Make sure you are up to date with the new statute.
(For that reason, I have included footnotes. Hopefully you find them helpful!)
Written by our intern Taurean Green
[1] Mass. R. Civ. P. 26(f).
[2] Mass. R. Civ. P. 26 reporter’s
notes.
[3] Id.
[4] The (2004) Sedona Principles: Best Practices, Recommendations &
Principles for Addressing Electronic Document Production, 5 SEDONA CONF. J.
151 (2004).
[5] 43. Mass. Prac., Trial Practice
§ 7.11 (2d.ed.) Some experts estimate that business and individuals now create
more than 200 billion e-mails per day and that the volume of electronic
information grows at a rate of up to 60 percent per year. Electronic
Discovery. In Massachusetts Discovery
Practice (MCLE, Inc. 2002 & Supp. 2005, 2009.)
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Manual for Complex Litigation,
Fourth, § 11.446
[11] Id.
[12] E-DISCOVERTY AND INTERNET/SOCIAL
NETWORKING DISOCOVERY, DISCPI MA-CLE 14-2.
[13] Supra note 1
[14] Id.
[15] Id.
[16] Supra note 12
[17] Id.
[18] Id.
[20] Id.
[21] Id.
[22] Id.
[23]
Mohammad Iqbal, The
New Paradigms of E-Discovery and Cost-Shifting Determining Who Pays for
Electronic Discovery, 72 Def. Couns. J. 283 (2005).
[24] Id.
[25] Id.
