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About 40 percent of Americans apparently make New Year’s resolutions. Of those, 8 percent are said to stick with them. So the vast majority of us either think we are fine as we are or have simply resigned ourselves to our current waistlines, how many cigarettes and bottles of beer we consume, and how much time we spend with family and friends. A third category might be those who do not know the date.
The courts in Massachusetts fall into the 40 percent category, resolving to get a much better handle on all the e-discovery taking place there. On New Year’s Day an overhaul of the state’s e-discovery rules went into effect, following along the lines of the Federal Rules of Civil Procedure (FRCP).
Courts in roughly half of the states have already adopted e-discovery rules in line with or close to those spelled out in the FRCP. Others have their own rules, while still others are not dealing with the issue. Only a handful have been reviewing their rules, including Massachusetts, which has been in the review stage for several years.
The Massachusetts Supreme Judicial Court adopted the changes in September 2013, an action that will lead to “increased attention to electronic discovery issues by the courts and the parties much earlier in the litigation,” according to attorneys Jonathan Sablone and Ronaldo Rauseo-Ricupero at Nixon Peabody International LLP. Attorneys in the state, they say, will need to become “much more facile with the e-discovery concepts and practices throughout the case.”
Sablone and Rauseo-Ricupero provided a list of ways things will be different in their state. Here are some of those differences:
- Courts formally have the power to allocate e-discovery costs and to do so early in a case.
- Courts can limit discovery of material even if it is easily accessible, if an alternative is less of a burden or less expensive, if the material is cumulative, if the information can be obtained through other discovery, or if the burden outweighs the benefit.
- Parties are encouraged to cooperate through e-discovery conferences and resulting agreements.
- New items on the conference agenda include the extent of discovery, preservation of electronically stored information (ESI), and assertions of privilege.
- The definition of “inaccessible information” is in line with the FRCP and clarifies what had been addressed in case law.
- Inadvertent production can now be addressed through a clawback procedure so privilege can be maintained over such material―but only after review of the producing party’s reasonable efforts to prevent disclosure or correct its mistaken production.
- Litigants now enjoy a safe harbor to largely remove the threat of sanctions for inadvertent destruction or spoliation, provided the data loss was part of “routine, good-faith” operations.
- Parties or attorneys issuing subpoenas must be careful not to impose undue burden on the individual being served.
- Non-parties served with subpoenas do not have the same obligations as litigants to produce privilege logs, but they have the same clawback protections as the litigants.
Sablone and Rauseo-Ricupero said Massachusetts attorneys will need to understand the “scope, costs, limitations and forms” of their electronic materials and identify disagreements very early in litigation. They said this year will “test whether the new rules’ reliance on negotiation by counsel and the prospect of e-discovery orders will achieve the desired result of a more streamlined and cost-effective electronic discovery system for Massachusetts.”