In re: Electronic Discovery & Adoption of Rule of Civil Procedure 26.1
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Cite as 2009 Ark. 448
SUPREME COURT OF ARKANSAS
No. 08-923
Opinion Delivered September
24, 2009
IN RE: ELECTRONIC
DISCOVERY
AND ADOPTION of
RULE OF CIVIL
PROCEDURE 26.1
PER CURIAM
The Arkansas Bar Association petitioned the court to amend the Arkansas Rules of
Civil Procedure by adding Rule 26.1 to address electronic discovery. The Bar’s draft was
the work of its Task Force on Electronic Discovery. We referred the proposal to our
Committee on Civil Practice. Subsequently, we published a proposed rule for comment
on March 5, 2009. In re Electronic Discovery and Proposed Ark. R. Civ. P. 26.1, 2009 Ark.
127 (per curiam). Again, we thank the Arkansas Bar Association, the Task Force on
Electronic Discovery, and the Committee on Civil Practice for their work on this project.
We make no changes to the previously published draft, and we adopt, effective
October 1, 2009, Ark. R. Civ. P. 26.1 as set out below.
Cite as 2009 Ark. 448
Arkansas Rule of Civil Procedure 26.1. Electronic Discovery.
(a) Definitions. In this rule:
(1) “Discovery” means the process of providing information in a civil proceeding
in the courts of this state pursuant to the Arkansas Rules of Civil Procedure or
these rules.
(2) “Electronic” means relating to technology having electrical, digital, magnetic,
wireless, optical, electromagnetic, or similar capabilities.
(3) “Electronically stored information” means information that is stored in an
electronic medium and is retrievable in perceivable form.
(4) “Person” means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, public
corporation, government or governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.
(b) Supplemental and optional rule. This rule is intended to supplement the Arkansas Rules of
Civil Procedure, and the Arkansas Rules of Civil Procedure shall govern if there is a
conflict between this supplemental rule and the Rules of Civil Procedure. The rule is
optional because either the parties must agree that it will apply, or the circuit court must
order that it will apply on motion for good cause shown.
(c) Conference, plan, and report.
(1) In any proceeding in circuit court, the parties may agree to pursue electronic
discovery pursuant to this rule or the court may so order on motion for good
cause shown. Any such agreement or motion shall be made within 120 days
after the date that the complaint was filed. The court, however, may extend
or reopen this period for good cause. Within 30 days of an agreement or order
to proceed under this rule, the parties shall confer. At this conference, the
parties shall discuss and plan for the following issues:
(A) any issues relating to preservation of discoverable information;
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(B) the form in which each type of the information will be produced;
(C) the period within which the information will be produced;
(D) the method for asserting or preserving claims of privilege or of
protection of the information such as trial-preparation materials,
including the manner in which such claims may be asserted after
production;
(E) the method for asserting or preserving confidentiality and proprietary
status of information relating to a party or a person not a party to the
proceeding;
(F) whether allocation among the parties of the expense of production is
appropriate; and,
(G) any other issue relating to the discovery of electronically stored
information.
(2) Following the planning conference, the parties shall:
(A) develop a proposed plan relating to discovery of the information; and
(B) not later than 14 days after the conference under subdivision (c)(1),
submit to the court a written report that summarizes the plan and states
the position of each party as to any issue about which they are unable
to agree.
(d) Order governing discovery.
(1) In a civil proceeding, the court may issue an order governing the discovery of
electronically stored information pursuant to:
(A) a motion by a party seeking discovery of the information or by a party
or person from which discovery of the information is sought;
(B) a stipulation of the parties and of any person not a party from which
discovery of the information is sought, or
(C) the court’s own motion, after reasonable notice to, and an opportunity
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to be heard from, the parties and any person not a party from which
discovery of the information is sought.
(2) An order governing discovery of electronically stored information may address:
(A) whether discovery of information is reasonably likely to be sought in the
proceedings;
(B) preservation of the information;
(C) the form in which each type of the information is to be produced;
(D) the time within which the information is to be produced;
(E) the permissible scope of discovery of the information;
(F) the method for asserting or preserving claims of privilege or of
protection of the information as trial-preparation material after
production;
(G) the method for asserting or preserving confidentiality and the
proprietary status of information relating to a party or a person not a
party to the proceeding;
(H) allocation of the expense of production; and
(I) any other issue relating to the discovery of the information.
(e) Limitation on sanctions. Absent exceptional circumstances, the court may not impose
sanctions on a party under these rules for failure to provide electronically stored
information lost as the result of the routine, good-faith operation of an electronic
information system.
(f) Request for production.
(1) In a civil proceeding, a party may serve on any other party a request for
production of electronically stored information and for permission to inspect,
copy, test or sample the information.
(2) A party on which a request to produce electronically stored information has
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been served shall, in a timely manner, serve a response on the requesting party.
The response must state, with respect to each item or category in the request:
(A) that inspection, copying, testing, or sampling of the information will be
permitted as requested; or
(B) any objection to the request and the reasons for the objection.
(g) Form of production. Unless the parties otherwise agree or the court otherwise orders:
(1) the responding party shall produce the information in a form in which it is
ordinarily maintained or in a form that is reasonably useful;
(2) if necessary, the responding party shall also produce any specialized software,
material, or information not ordinarily available so that the requesting party can
access and use the information in its ordinarily maintained form; and
(3) a party need not produce the same electronically stored information in more
than one form.
(h) Limitations on discovery.
(1) A party may object to discovery of electronically stored information from
sources that the party identifies as not reasonably accessible because of undue
burden or expense. In its objection the party shall identify the reason for such
undue burden or expense.
(2) On motion to compel discovery or for a protective order relating to the
discovery of electronically stored information, a party objecting bears the
burden of showing that the information is from a source that is not reasonably
accessible because of undue burden or expense.
(3) The court may order discovery of electronically stored information that is from
a source that is not reasonably accessible because of undue burden or expense
if the party requesting discovery shows that the likely benefit of the proposed
discovery outweighs the likely burden or expense, 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.
(4) If the court orders discovery of electronically stored information under
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subdivision (h)(3) it may set conditions for discovery of the information,
including allocation of the expense of discovery.
(5) The court shall limit the frequency or extent of discovery of electronically
stored information, even from a source that is reasonably accessible, if the court
determines that:
(A) it is possible to obtain the information from some other source that is
more convenient, less burdensome, or less expensive;
(B) the discovery sought is unreasonably cumulative or duplicative;
(C) the party seeking discovery has had ample opportunity by discovery in
the proceeding to obtain the information sought; or
(D) the likely burden or expense of the proposed discovery outweighs the
likely benefit, 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.
(i) Claim of privilege or protection after production. A claim of privilege or protection after
production of electronic data under these supplemental rules shall be governed by Rule of
Civil Procedure (26)(b)(5) unless the application of that rule is modified by agreement of
the parties or by order of the court.
(j) Subpoena for production.
(1) A subpoena in a civil proceeding may require that electronically stored
information be produced and that the party serving the subpoena or person
acting on the party’s request be permitted to inspect, copy, test, or sample the
information.
(2) Subject to subsections (j)(3) and (j)(4), subdivisions (g), (h), and (i) apply to a
person responding to a subpoena under subsection (j)(1) as if that person were
a party.
(3) A party serving a subpoena requiring production of electronically stored
information shall take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoena.
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(4) An order of the court requiring compliance with a subpoena issued under this
rule must provide protection to a person that is neither a party nor a party’s
officer from undue burden or expense resulting from compliance.
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