On December 1, 2006, the Federal Rules of Civil Procedure were modified in order to address e-discovery issues. The Arizona Supreme Court has followed suit by adopting new e-discovery rules that became effective on January 1, 2008. The changes adopted by the Arizona Supreme Court modernize the old rules and specifically address e-discovery. E-discovery is the discovery of all things electronic. This includes information contained in computer files (even deleted ones), hard drives, servers, browsing histories, digital images, recordings and e-mails. It even includes metadata (the data that your computer and software programs preserve about a file). Metadata may include information about the date of creation of a file, the date of and content of modifications and deletions to a file, and the persons who viewed or modified a file.
The increased use of electronic information systems has made e-discovery an integral, and potentially very expensive, component of litigation. This in turn means that every business should have in place policies for the preservation and storage of electronic data that are consistent with current legal obligations. Businesses should also prepare to locate, preserve and produce relevant electronic information in the event of litigation. Failure to do so may result in many expenses during the production process or potential sanctions for failure to produce. Familiarity with the new e-discovery rules will help businesses avoid such expenses, understand the growing importance of e-discovery and protect privileged information from inadvertent disclosure.
An Overview of Key Modifications to Arizona’s Discovery Rules
(As outlined in the Arizona Rules of Civil Procedure)
Rule 16(b) requires that the parties schedule electronic information disclosure deadlines. It also empowers the court to enter orders regarding the discovery of electronic information, the form of production of electronic information, the preservation of electronic information and mutual agreements between the parties for asserting claims of privilege.
Rule 16.3 requires that the parties consider requirements or limitations for the discovery, preservation and protection of electronic information.
Rule 26(b) provides that a party need not provide discovery of electronic information if the information is not reasonably accessible and production would be unduly burdensome. However, the court may still order disclosure if the requesting party shows good cause.
Rule 26.1 requires that parties disclose a list of all relevant electronically stored information known by the parties to exist. Parties must serve a copy of the electronically stored information unless good cause is shown, in which case they must provide the name and address of the custodian of the information. It also provides for the protection of inadvertently disclosed privileged material.
Rule 34 allows parties to serve requests for production of electronic information upon each other and to specify the form or forms in which the information is to be produced.
Rule 37(g) protects parties from sanctions if electronic information is lost as the result of a routine, good-faith operation of an electronic information system.
Rule 45 allows parties to subpoena electronic information from non-parties.
Some Tips for Data Preservation and E-Discovery
Consult with an expert to draft formal policies for the preservation, retention and deletion of electronic data. Train employees regarding your electronic data policies. These policies, if complied with, may protect your company from sanctions if information is deleted as part of the routine, good-faith operation of your electronic information system. See Rule 37(g).
Maintain constant awareness of your business’ e-data architecture: the location and information content of servers, laptops, hand-held devices, hard drives, back-up drives, web-mail, storage items such as thumb drives, DVDs and CDs – even home computers where business information might be stored. This awareness will limit the costs of production in litigation.
Remind employees that e-mails (even deleted ones) are discoverable and e-mails, like all communications, should be carefully drafted in accordance with company policy.
Be prepared to implement an electronic data preservation strategy in the event of imminent litigation. Also, remember to send opposing parties a preservation letter instructing them to halt all destruction of electronic data. If necessary, seek a court order on preservation under Rule 16(b).
Hire an expert in computer forensics to assist with discovery and production of electronic data. This expert may provide valuable advice and assistance regarding the form of production desired, the location of data, the analysis of data and the accessibility of data.
Avoid excessive litigation over the inadvertent disclosure of privileged electronic information by agreeing to claw-back provisions with opposing parties.
Remember to look through and review metadata for important information regarding the files you have received. Unless requested otherwise, electronic data should be provided in the form in which it is ordinarily maintained and this form will typically include metadata.
