By Brian C. Vick and Ada K. Wilson
On October 1, 2011, new procedural rules recently adopted by the North Carolina General Assembly will take effect and, for the first time, address electronic discovery in a systematic and uniform manner in the state courts. These amendments to the North Carolina Rules of Civil Procedure primarily provide practitioners with the procedural tools necessary to manage electronic discovery, but also significantly increase the ability of litigants to obtain court-ordered limits on the discovery process. The amendments are numerous and, in some instances, technically nuanced. However, the following list represents the ten most significant changes that parties and practitioners will confront when the rules take effect later this year.
The new North Carolina rules are largely patterned on the 2006 electronic discovery amendments to the Federal Rules of Civil Procedure, and, as a result, the practices and procedures that have developed in the federal courts in recent years will provide a substantial amount of guidance on compliance with the state amendments. Although the North Carolina courts are unlikely to follow an identical course as the federal courts in interpreting and applying these rules, the existing body of case law and practice norms are likely to carry over to a significant degree.
Based on our experience with both the federal rules and similar state rules, once the amendments take effect, companies doing business in North Carolina will experience an increased need to implement appropriate information governance policies and procedures that will allow them quickly and efficiently to (a) identify the need for a litigation hold, (b) identify the data that need to be preserved, (c) identify the custodians of that data; (d) prevent any automatic loss or destruction of the data; and (e) maintain and monitor compliance with the litigation hold. Further, in order to manage electronic discovery in as cost-effective a manner as possible, companies will want to develop familiarity and experience, either through in-house or outside counsel, in creating and negotiating targeted discovery plans that address issues such as preservation orders, protective orders and clawback provisions, each of which can significantly limit the cost and burden of electronic discovery.
The Williams Mullen E-Discovery and Information Governance Section will continue to monitor these electronic discovery rules once they take effect and will issue updates on any noteworthy developments as they occur.
For more information about this topic, please contact the author or any member of the Williams Mullen e-Discovery and Information Governance Team.
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