• Rule 16(b)(5)& (6): Pretrial Conferences, Scheduling Management.
  The scheduling order entered under this rule includes provisions for disclosure or discovery of electronically stored information and permits the parties to reach agreements for asserting claims of privilege or protection as trial-preparation material after production.



• Rule 26(a)(1)(B): General Provisions Governing Discovery; Duty of Disclosure; Required Disclosures; Methods to Discover Additional Matter.
  This rule requires that parties, without awaiting a discovery request, provide to other parties a copy of, or description by category and location of, electronically stored information.



• Rule 26(f)(3) & (4): General Provisions Governing Discovery; Duty of Disclosure; Conference of Parties; Planning for Discovery.
  This rule requires that parties confer to discuss any issues relating to preserving discoverable information and any issues related to disclosure or discovery of electronically stored information. This includes the form or forms in which electronically stored information should be produced, and any issues relating to claims of privilege or protection as trial-preparation material. If the parties agree on a procedure to assert such claims after production, the parties should discuss whether to ask the court to include this agreement in an order.



• Form 35: Report Parties Planning Meeting.
  The form adds a brief description of the parties' proposals for handling the disclosure or discovery of electronically stored information.



• Rule 26(b)(2)(B): General Provisions Governing Discovery; Duty of Disclosure; Discovery Scope and Limits; Limitations.
  The rule provides that a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On both a motion to compel discovery or for a protective order, the burden is on the responding party to show that the information is not reasonably accessible because of undue burden or cost. Even if that showing is made, the court may nonetheless order discovery from that party if the requesting party shows good cause, considering the limitations that are set forth in Rule 26(b)(2)(C) (i.e. whether the discovery sought is cumulative, burden of expense outweighs the benefit, etc.). The court may also specify conditions for the discovery.



• Rule 26(b)(5)(B): General Provisions Governing Discovery; Duty of Disclosure; Discovery Scope and Limits; Claims of Privilege or Protection of Trial Preparation Materials; Information Produced.
  This rule provides that if information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party is required to promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party is required to preserve the information until the claim is resolved.



• Rule 33(d): Interrogatories to Parties; Option to Produce Business Records.
  This rule provides that where the answer to an interrogatory may be derived from electronically stored information, and the burden of deriving the answer is substantially the same for the responding party and the requesting party, it is a sufficient answer to the interrogatory to specify the records from which the answer may be derived or ascertained. The responding party must allow the requesting party reasonable opportunity to examine, audit of inspect such records and make copies, compilations, abstracts or summaries.



• Rule 34(a) & (b): Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and other Purposes; Procedure.
  This rule provides that any party may serve on any other party a request to produce electronically stored information. The rule would also permit the party making the request to inspect, copy, test or sample electronically stored information stored in any medium from which information can be obtained - translated if necessary by the responding party into a reasonably usable form. The rule provides that the request may specify the form or forms in which electronically stored information is to be produced. The producing party may object to the requested form or forms for producing electronically stored information stating the reason for the objection. If an objection is made to the form or forms for producing electronically stored information - or no form was made in the request - the responding party would be required to state the form or forms it intends to use. If a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. A party need not produce the same electronically stored information in more than one form.



• Rule 37(f): Failure to Make Disclosures of Cooperate in Discovery Sanctions; Electronically Stored Information.
  This section of Rule 37 provides that absent exceptional circumstances, a court may not impose sanctions under the 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.



• Rule 45 Subpoena; Form; Issuance.
  This rule adds that a subpoena shall command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing, or sampling of among other things, electronically stored information. In addition, a subpoena may specify the form or forms in which electronically stored information is to be produced. Subpoenas may be served to not only inspect materials but to copy, test or sample those materials. Similarly to Rule 34, if a subpoena did not specify the form or forms for producing electronically stored information, a responding party is required to produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and a party need not produce the same electronically stored information in more than one form. As in Rule 26(b)(2)(B), a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On both a motion to compel discovery or for a protective order, the burden is on the responding party to show that the information is not reasonably accessible because of undue burden or cost. Even if that showing is made, the court may nonetheless order discovery from that party if the requesting party shows good cause, considering the limitations that are set forth in Rule 26(b)(2)(C) (i.e. whether the discovery sought is cumulative, burden of expense outweighs the benefit, etc.). The court may also specify conditions for the discovery. Similarly to Rule 26(b)(5)(B), if information is produced in response to a subpoena that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified a party would be required to promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose this information until the claim is resolved.

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On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. See Sen. Rept. No. 110-264.

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Senator Leahy noted that “Billions of dollars are spent each year in litigation to protect against the inadvertent disclosure of privileged materials. With the routine use of email and other electronic medial in today’s business environment, discovery can encompass millions of documents in a given case, vastly expanding the risks of inadvertent disclosure . . . Our proposed legislation would set clear guidelines regarding the consequences of inadvertent disclosure of privileged material and provides that so long as reasonable steps are taken in the prevention of such a disclosure . . . no waiver will result.” 153 Cong. Rec. S 15140, *S15142.

Senator Leahy was joined in his support of the bill by Senator Specter (R-Pa), the ranking member of the Committee, who noted that “the proposed rule enjoys wide support from parties on both sides of the “v.” Both plaintiffs and defendants want this rule because it makes the litigation more efficient and less costly.” Id. Both Senators urged all Senators to pass the proposal.

History of Proposed Federal Rule 502

Rule 502, was proposed to address some of the issues raised by the effect of disclosure of attorney client and work product materials, in light of the costs of reviewing the volume of electronic information now being produced in litigation. The purpose of the rule is also to resolve the concern that any disclosure of protected information will operate as a subject matter waiver. See Hopson v. Mayor, 2005 U.S. Dist. LEXIS 29882 (D. Md. 2005). The Rule is discussed in detail as an “action item” in the May 15, 2007 Report of the Advisory Committee on Evidence Rules to the Standing Committee on Rules of Practice and Procedure.
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Notably absent from the proposed rule is the selective waiver language that appeared in previous drafts. The Evidence Rules Committee approved a separate report for Congress on selective waiver which sets forth the argument in favor and against the doctrine, but takes no position. The Committee also prepared language for a statute on selective waiver in the event that Congress should decide to proceed with a separate selective waiver provision.

The proposed amendment was first drafted in March of 2006 and was the subject of hearings at Fordham University on April 24 and 25. For a transcript of the hearing, click here. In a May 16, 2006 report to the Chair of the Federal Standing Committee on Rules of Practice and Procedure, the Advisory Committee submitted a revised rule with a recommendation that it be published for public comment. The proposed amendment was approved at its June 22-23, 2006 meeting.

Under the proposed rule, the disclosure of the attorney client or work product protected material does not operate as a waiver if the disclosure was made inadvertently and the holder of the privilege took reasonable steps to prevent the disclosure including following the provisions of FRCP 26(b)(5)(B). Rule 502 would apply to all cases in federal court, and protects against waiver in both state and federal court, including cases in which state law provides the rule of decision, notwithstanding Rules of Evidence 501, 101 and 1101. The rule rejects the notion that inadvertent disclosure of documents during discovery automatically constitutes subject matter waiver. As for confidentiality agreements, agreements between the parties are valid as to the parties, and court orders are also valid as to third parties in both state and federal proceedings.

More information can be found at: www.uscourts.gov/rules.



Bar Associations and Ethics Opinions

ABA

Metadata, ABA Formal Op. 06-442 (2006)
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Metadata, ABA Formal Op. 05-437 (2005)
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ABA Model Rules of Professional Responsibility, Rule 1.6
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ABA Model Rules of Professional Responsibility, Comment 4,
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ABA Model Rules of Professional Responsibility, Rule 4.4(b),
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Alabama
Metadata, Alabama Bar Association Ethics Op., RO-2007-02
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Metadata, Alabama State Bar Op., RO-2007-02
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California
Outsourcing, St. Bar of Calif. Formal Op. 2004-165
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Outsourcing, St. Bar of Calif. Formal Op. 2004-174
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Outsourcing, Los Angeles County Bar Ass'n, Prof'l Resp. & Ethics Comm., Op. 518
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Outsourcing, San Diego County Bar Ass'n, Op. 2007-1
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District of Columbia
DC Bar Legal Ethics Committee, Ethics Op. No. 341
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Metadata, Prof'l Ethics of the Florida Bar, Op. 06-2,
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Maryland
Metadata, Maryland State Bar. Assoc., Op. 2007-09
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New York
Metadata, New York State Bar Op. 782
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Metadata, New York State Bar Op. 749
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Outsourcing, Assoc. of the Bar of the City of New York, Op. 2006-03,
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