Revisions to the North Carolina Rules of Civil Procedure
became effective to actions filed on or after October 1, 2011. A blacklined
version showing the changes wrought by a law titled an "Act to
clarify the procedure for discovery of electronically stored information and to
make conforming changes to the North Carolina Rules of Civil Procedure" is
You all are probably familiar with these amendments
already, as I'm behind the curve on this subject.. There's lots out there on
the web, way earlier than this post, from other law firms. Like here,
here and here.
There are at least 39 states which have addressed the issue of
the most current listing I've seen.
On the subject of other North Carolina changes, the North
Carolina Bar Association has put together a
comprehensive bulletin which is a "summary of new laws affecting North
Carolina lawyers." One of the new laws you should look at, beyond the
ESI-specific changes, is North Carolina's adoption of the Uniform Interstate
Discovery and Depositions Act as N..C. Gen
Stat. §§1F-1 to 7. The Act defines clear procedures for an out of
state litigant to get a subpoena to depose a witness (or to obtain documents)
in North Carolina. It also elucidates the procedure for a litigant
to in a North Carolina case to send a subpoena outside of North Carolina.
These procedures kick into effect on December 1, and apply to actions filed on
or after that date.
Definition of ESI Includes Metadata
Rule 26 now contains a definition of ESI, though it is
limited to the subcategory of metadata and whether that should be included in
production It says that only limited metadata must be produced, absent an
agreement between counsel:
For the purposes of these rules regarding discovery, the
phrase 'electronically stored information' includes reasonably accessible
metadata that will enable the discovering party to have the ability to access
such information as the date sent, date received, author, and recipients. The
phrase does not include other metadata unless the parties agree otherwise or
the court orders otherwise upon motion of a party and a showing of good cause
for the production of certain metadata
Recovery of Costs Of Production Of ESI
In a change which is destined to become the source of a
good bit of pretrial wrangling given the high cost often involved in the
gathering and production of ESI, Revised Rule 26(b)(3) now empowers the Court
to "specify conditions for the discovery," specifically "including allocation
of discovery costs."
Read this article in
its entirety on North
Carolina Business Litigation Report, a blog for lawyers focusing on issues
of North Carolina business law and the day-to-day practice of business
litigation in North Carolina courts.
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