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E-discovery rule changes allow format choice, prevent abuse
Among other things, recent amendments to Illinois Supreme Court Rules 201 and 214 empower courts to tailor discovery if the burden of the request outweighs the benefit.
Effective July 1, 2014, the Illinois Supreme Court amended Supreme Court Rules 201 and 214 to give parties more control over the discovery of electronically stored information, or ESI. Proponents of the amendments say they give litigants flexibility while preventing abusive and overly burdensome production requests. Among other things, they allow parties to specify the format in which they want to receive documents - the difference between getting emails on a single disc and several banker's boxes of Bates-stamped printouts.
ESI can take many forms, from Microsoft Word documents and emails to metadata - the "hidden" data associated with most digital files. In the past, Illinois litigators have had to carefully define ESI to make sure they received what they needed. But predicting every possible meaning of the word "document" is difficult, especially given the constant changes to information technology.
The amendments to Supreme Court Rule 201 go a long way towards addressing the problem, observers say. According to Timothy Chorvat of Jenner & Block, past chair of the ISBA Civil Practice and Procedure Section, the amendments "move state standards to match what federal courts have done since 2006." The amendments are a "welcome change in terms of bringing Illinois' rules into line with technology today."
While Rule 201 ("General Discovery Provisions") had always prohibited duplicative requests, it never expressly defined ESI. Rule 201(b)(4) now defines it as "any writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations in any medium from which electronically stored information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form."
This definition is expansive, but Rule 201 also provides a limiting clause. Rule 201(c)(3) mandates "[p]roportionality," granting courts the authority to tailor discovery orders based on "whether the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues." Chorvat notes that while Rule 201 always prohibited duplicate discovery requests, it is now expressly does so for ESI.
The proportionality provisions of Rule 201 allow courts to limit the scope of discovery when a specific piece of ESI could be stored in multiple locations. The committee comments to the amendment note that, for most purposes, ESI that can be protected from discovery includes the remnants of deleted data, the contents of RAM, online access data, metadata, backup data, and data that cannot be retrieved without extraordinary measures.
However, the comments also note that, depending on the nature of the case, "the proportionality analysis may support the discovery of some of the types of ESI on this list. Moreover, this list is not static, since technological changes eventually might reduce the cost of producing some of these types of ESI." This provision provides flexibility to the parties to a lawsuit and lets courts tailor their rulings based on the dominant technology of the day.
The importance of format
The changes to Rule 214 ("Discovery of Documents, Objects, and Tangible Things…") provide litigants with more choice about how ESI is produced. In particular, Rule 214(b) allows requests to produce to specify the form in which ESI is to be produced. If no format is specified, then litigants must produce the ESI in the form in which it is regularly maintained or in a reasonably usable form.
For example, it may be important to a requesting party that it receive ESI in its native format because the metadata associated with the files could contain relevant information. The metadata associated with a Microsoft Word document may reveal when changes were made to the document and by whom they were made.
According to Chorvat, this may also make things harder for producing parties because files in their native format cannot be Bates stamped. However, he notes, an image of the file can be Bates stamped and produced along with the native file.
If a party finds that a specific request to produce is too burdensome based on the nature of the request or of the ESI requested, Rule 214 allows litigants to object to such requests based on the factors set out in Rule 201(c)(3).
Rule 214 also requires that a party responding to a production request identify all relevant materials in its possession. That way, if materials are stored both onsite on a local server and offsite on a hosted data backup service, parties can identify all of the responsive data without having to produce each and every copy.