by Stephany Collamore
Litigants in state court cases have been obtaining discovery of Electronically Stored Information, or “ESI,” for quite some time. The broad scope of discovery permitted by Mass.R.Civ.P. 26(b)(1), the expansive definition of “documents” found in the previous version of Mass.R.Civ.P 34(a), and the reference to “electronic storage locations” in Superior Court Standing Order 1-09(c)(3) all suggest that ESI should be discoverable. Until the enactment of certain amendments to the Mass. Rules of Civil Procedure (“Rules”) that took effect on January 1st of this year, however, litigants and the courts had little guidance as to how to proceed with this important form of discovery. Rules 16, 26, 34, 37 and 45, as amended, now provide some much-needed regulation. This article addresses some of the key provisions.
Form of Production
Rule 34 has been amended to include a specific reference to ESI and to provide the requesting party the opportunity to specify the form in which it would like ESI to be produced. Mass.R.Civ.P. 34(b)(1). For example, a party may request that e-mails be produced in searchable native format rather than in less readily searchable PDF format or in paper. A party may also request production in the particular electronic form that works best with the computers of the requesting party or its ESI vendor. At the same time, amended Rule 34 allows the responding party to object to a requested form of ESI production. Mass.R.Civ.P. 34(b)(2)(B). This should help identify areas of disagreement before the production is actually made.
A party has a right to demand an ESI conference with the opposing party so long as the demanding party serves a written request for such a conference within 90 days after service of the first responsive pleading. Mass.R.Civ.P. 26(f)(2)(A). Per Rule 26(f)(2)(C), the topics to be addressed at an ESI conference include:
- any issues relating to preservation of discoverable information;
- the form in which each type of information will be produced;
- what metadata, if any, should be produced;
- the time within which the information will be produced;
- the methods for asserting or preserving (a) claims of privilege and/or work product protection and (b) the confidential and/or proprietary status of information;
- whether allocation among the parties of the expense of production is appropriate; and
- any other issue related to the discovery of ESI.
Once a request is served, the conference should be held as soon as possible, but no later than 30 days after the request is made. Id. This means that a party may be required to participate in an ESI conference within a month of the filing of a responsive pleading, making it imperative for attorneys to become knowledgeable about their clients’ ESI as soon as possible.
Even when a party waives its right to an ESI conference by failing to timely request one, the parties may nevertheless hold such a conference by agreement or by order of the court upon motion. Mass.R.Civ.P. 26(f)(2)(B). Regardless of how the ESI conference is initiated, the same topics identified above are to be addressed, and an ESI plan is to be filed with the court within 14 days after the conference. Mass.R.Civ.P. 26(f)(2)(C).
ESI Plans and Orders
A court may enter an order governing the discovery of ESI sua sponte (after notice to the parties), or after conference, motion or stipulation. In addition to the topics set out in Rule 26(f)(2)(C), an order governing the discovery of ESI may also address whether discovery of ESI is reasonably likely to be sought and the permissible scope of such discovery. Mass.R.Civ.P. 26(f)(3)(A-J). Nonetheless, the general scope of discovery is unaffected. Mass.R.Civ.P. 26(b)(1).
Cost-Shifting and Inaccessible ESI
Rule 26(f)(2)(C)(vii) directs the parties to discuss at their ESI conference “whether allocation among the parties of the expense of production is appropriate.” The allocation of expense is often referred to as “cost shifting.” One specifically identified area where cost shifting may be imposed is with regard to “inaccessible” ESI.
“Inaccessible” ESI is defined as ESI “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Mass.R.Civ.P. 26(f)(1). For example, data archived on back-up tapes might be determined to be “inaccessible.” In the context of a motion to compel, a party objecting to the production of ESI pursuant to Rule 26(f)(4)(A) bears the burden of showing inaccessibility. Mass.R.Civ.P. 26(f)(4)(B). Even where this showing is made, the requesting party may nonetheless obtain discovery of the inaccessible ESI if the requesting party is able to show that the likely benefit of its receipt outweighs the likely burden of its production. Mass.R.Civ.P. 26(f)(4)(C). In making this determination, the court should consider 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. Id. Further, where the production of inaccessible ESI is ordered, the court may set conditions for its discovery, including cost-shifting.
Court’s Power to Limit Discovery
The amended Rules also explicitly grant courts the power to limit discovery from accessible ESI sources “in the interests of justice” based on a consideration of several factors. See Mass.R.Civ.P. 26(f)(4)(E). This is one area where the Massachusetts Rules differ from the Federal Rules of Civil Procedure (“Federal Rules”), although federal courts clearly possess the power to limit discovery generally. See Fed.R.Civ.P. 26(b). In fact, there is significant overlap between the factors set out in Federal Rule 26(b)(2)(C) (identifying limitations to which all discovery is subject) and Massachusetts Rule 26(f)(4)(E), including whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive, whether the discovery sought is unreasonably cumulative or duplicative, and whether the likely burden or expense of the discovery outweighs the likely benefit.
ESI Lost as a Result of Routine, Good-Faith Operations
Rule 37 has been amended to include a “safe harbor” provision that protects parties from sanctions for failing to produce ESI that has been lost as a result of the routine, good-faith operation of an electronic information system. Mass.R.Civ.P. 37(f). Note, however, that this amendment was not intended to alter any existing state law on the obligation to preserve evidence when litigation is reasonably anticipated or has commenced. Mass.R.Civ.P. 37 (Reporter’s Notes 2014).
Non-Parties and Unrepresented Parties
The impact of the ESI amendments to the Rules will not be limited to represented parties. For example, under amended Rule 45(b), a subpoena may command a person to whom it is directed to produce ESI and, under amended Rule 16, a court may direct an unrepresented party to appear for a conference.
The production of ESI creates an increased risk that a party will inadvertently produce material that is protected by privilege and/or the work-product doctrine. Thus, it bears noting that the amended Rules include a “clawback” provision whereby a producing party may assert a claim of privilege or of protection under the work product doctrine with respect to information, including but not limited to ESI, that is inadvertently produced in discovery. Mass.R.Civ.P. 26(b)(5)(B) & (C).
Stephany Collamore is an associate in the Litigation Department at Foley Hoag LLP. Her practice is focused on complex litigation in the areas of accountants’ professional liability, governmental investigations and general commercial disputes.