My home base of Massachusetts has become the latest state to adopt rules governing the discovery of electronically stored information in civil cases. The new rules, which the Supreme Judicial Court adopted on Sept. 24 and which take effect on Jan. 1, 2014, borrow heavily from the 2006 amendments to the Federal Rules of Civil Procedure, from the Federal Rules of Evidence, and from the 2007 Uniform Rules Relating to the Discovery of Electronically Stored Information developed by the National Conference of Commissioners on Uniform State Laws.
The changes come as amendments to the Massachusetts Rules of Civil Procedure and are applicable to all trial courts in the state. The purpose of the new rules, according to the Reporter’s Notes, was to craft a process that would address four major points:
- Enable the parties and the court to deal with e-discovery early in the litigation, including the format for production of ESI.
- Address how to handle ESI that is “inaccessible.”
- Recognize that privileged information may be inadvertently disclosed in the context of e-discovery and provide a remedy for such disclosure.
- Provide protection where ESI is lost by virtue of the “good-faith operation of an electronic information system.”
A key change in the new rules is to create a “clawback” provision, modeled on the inadvertent disclosure language of Federal Rule of Evidence 502. The new Massachusetts Rule 26(b)(5)(B) provides that if privileged or work-product information is mistakenly produced, the producing party should notify the party that received the information. The receiving party should then return, sequester or destroy the information until the claim of privilege is resolved. The rule borrows from FRE 502 in directing the court, in resolving a claim of inadvertent disclosure, to consider whether:
- the disclosure was inadvertent;
- the holder of the privilege or protection took reasonable steps to prevent disclosure; and
- the holder promptly took reasonable steps to rectify the error.
Another key change, a new Rule 26(f), provides for e-discovery conferences to be held early in the life of a case. Unlike the federal rules, this new rule does not mandate a meet-and-confer as a matter of course. Rather, any party may schedule an e-discovery conference “as of right” by requesting it in writing within 90 days after service of the first responsive pleading. Alternatively, a conference may be scheduled at a later time by agreement of the parties or by order of the court. Among the items that the rule specifies must be discussed at the conference are:
- Any issues relating to preservation.
- The form of production for each type of information.
- What metadata, if any, is to be produced.
- The schedule for production.
- The method for asserting or preserving claims of privilege and work-product protection.
- The method for asserting or preserving confidentiality and trade secrets.
- Any allocation among the parties of production costs.
Within 14 days after the conference, the parties must file an e-discovery plan with the court. The court may enter an e-discovery order pursuant to the plan, in response to a motion, or in its own discretion.
Under the new rule, courts are authorized to limit discovery of ESI that is “inaccessible.” The rule defines that to mean ESI “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” The rule goes on to say:
The court may order discovery of inaccessible electronically stored information if the party requesting discovery shows that the likely benefit of its receipt outweighs the likely burden of its 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.
Similar to the federal rules, the new Massachusetts rules also allow judges to limit the frequency or extent of e-discovery, even from an accessible source, “in the interests of justice.”
The Massachusetts rule also borrows from its federal counterpart in establishing a “safe harbor” that precludes a court from imposing sanctions when ESI “is lost as a result of the routine, good-faith operation of an electronic information system.” The Reporter’s Notes emphasize that this safe harbor language “was not intended to change any existing law in Massachusetts on the obligation to preserve evidence when litigation is reasonably anticipated or has commenced.”
A number of other, less-substantive changes were made to various rules to add references to e-discovery and ESI.
For more information on the new Massachusetts e-discovery rules, see the SJC’s order adopting the rules (which includes the full text of the new rules), the Reporter’s Notes, and the SJC’s press release.