In re Electronic Discovery and Proposed Ark. R. Civ. P. 26.1
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Cite as 2009 Ark. 127
SUPREME COURT OF ARKANSAS
No. 08-923
IN RE ELECTRONIC DISCOVERY
AND PROPOSED ARK. R. CIV. P. 26.1
Opinion Delivered
March 5, 2009
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 petition was
referred to our Committee on Civil Practice. The committee collaborated with the Bar’s Task
Force on Electronic Discovery, which had done the work that gave rise to the Bar’s petition,
to resolve both issues of form and substance. In the end, there were two areas of
disagreement.
The committee recommends that the rule apply only where the parties agree or the trial
court so orders in response to a motion. The Bar had proposed that any party could trigger
the rule. We agree with the committee that current Rule 26 can deal with most cases and that
the new rule needs to be tested in limited application to see how it works. We will publish
the committee’s language regarding subdivisions (b) and (c), and the Bar’s alternative
approach can be compared by reference to the footnote.
The other issue of disagreement relates to the form of production. The Bar
recommended that the requesting party specify the form in which the responding party must
produce the electronic information. The committee suggests that the new rule follow the
approach of current Rule 26 and the Arkansas Freedom of Information Act, to-wit: electronic
information is to be produced in the form in which it is ordinarily kept. We agree and
incorporate the committee’s provision in Rule 26.1(g). The Bar’s alternative version is
illustrated in the corresponding footnote.
We express our gratitude to the Arkansas Bar Association and in particular the
members of the Task Force on Electronic Discovery and to our Committee on Civil Practice
for their labor on this important subject.
Comments on this suggested rule should be made in writing before May 15, 2009, to:
Leslie W. Steen, Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice
Building, 625 Marshall Street, Little Rock, Arkansas 72201.
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
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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.1
(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;
(B)
the form in which each type of the information will be produced;
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This rule is optional because a party must file and serve a notice invoking
the rule.
(c)
Conference, plan, and report.
(1)
In any proceeding in circuit court, any party may invoke this rule by
filing and serving notice that the party intends to pursue electronic
discovery pursuant to this rule. Any such notice shall be made
within 180 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 the date of service of the notice, the parties shall
confer. At this conference, the parties shall discuss and plan for the
following issues:
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(C)
(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)
(2)
the period within which the information will be produced;
any other issue relating to the discovery of electronically stored
information.
Following the planning conference, the parties shall:
(A)
(B)
(d)
develop a proposed plan relating to discovery of the information; and
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.
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
to be heard from, the parties and any person not a party from which
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discovery of the information is sought.
(2)
An order governing discovery of electronically stored information may
address:
(A)
(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)
(e)
whether discovery of information is reasonably likely to be sought in
the proceedings;
any other issue relating to the discovery of the information.
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.
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(2)
A party on which a request to produce electronically stored information has
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)
(B)
(g)
that inspection, copying, testing, or sampling of the information will be
permitted as requested; or
any objection to the request and the reasons for the objection.
Form of production.
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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;
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A party requesting production of electronically stored information
may specify the form in which each type of electronically stored
information is to be produced.
(1)
(2)
If a party responding to a request for production of electronically
stored information objects to a specified form for producing the
information, or if no form is specified in the request, the responding
party shall state in its response the form in which it intends to
produce each type of the information.
(3)
Unless the parties otherwise agree or the court otherwise orders:
(a)
if a request for production does not specify a form for
producing a type of electronically stored information, the
responding party shall produce the information in a form in
which it is ordinarily maintained or in a form that is
reasonably usable; and
(b)
a party need not produce the same electronically stored
information in more than one form.
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(2)
(3)
(h)
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
a party need not produce the same electronically stored information in more
than one form.
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
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
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(D)
(i)
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.
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.
(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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