E-Discovery Coming to a Court Near You

Posted on Friday, October 25th, 2013 at 1:00 am    

Massachusetts state court practitioners will soon come face-to-face with the reality of new e-discovery rules.  Once the province of federal courts and complex business cases, e-discovery will become a reality for all due to amendments to the Massachusetts Rules of Civil Procedure slated to take effect on January 1, 2014.

The most significant provision of the new Rules, an amendment to M.R.C.P. Rule 26(f), permits any party to request a conference within 90 days after the filing of the first responsive pleading by a defendant.  The request must be in writing, and the conference (either telephonic or in person) must take place within 30 days of the request.

The key to this provision is the requesting party’s right to a conference, so long as the request is timely made.  If no request is made within 90 days, any party may request a conference at a later time, and may ask the court to conduct the conference if the opposing parties do not agree.  The ability to require the opposing party to participate in an early conference is a powerful tool that gives significant leverage to the party seeking the electronically stored information.  Rule 26(f)(2)(C) outlines the topics to be covered at the conference, covering such common issues as preservation, form of production, production of metadata,  privilege issue, and how the costs will be allocated.  The new Rule permits a party seeking information to identify and preserve electronic evidence at the outset of the litigation, and reduces the risk that the information will be destroyed in the ordinary course of business operations.

Rule 34(b)(C) governs the actual production of electronic data.  Essential for recipients of large amounts of data, the rule requires the producing party to organize the information in a sensible manner, and permits the requesting party to specify the form in which the data is to be produced.  Rule 45(f) creates similar rights and obligations for information being produced in response to a subpoena.

While the obvious targets of mandatory conferences will be business, hospitals and other organizations that maintain data in electronic form, the new Rule may be equally useful to parties seeking electronic information created or received by individuals.  Many parties are starting to attempt to obtain personal emails, Facebook and My Space postings, and other social media data.  The individuals from whom this data is sought are highly unlikely to have formal purging or retention policies, and thus this information is apt to change or disappear at any moment.

A pre-suit preservation letter may accomplish some of the same purposes as the new Rules amendments, particularly with respect to preventing the routine destruction of electronic information as a result of ordinary business practices.  However, the right to an early conference is, at least in theory, much more powerful, as it provides the requesting party with a quick and inexpensive method of identifying what electronic data exists, without the delays and obstruction common in response to blind discovery requests.

Read the text of the new Rule changes here.