Ken Withers
1 East Loma Lane
Phoenix, AZ 85020
602-237-5280
[email protected] As an Arizona resident who has spent several years studying and writing about the disclosure and production of electronically stored information in civil litigation, I have followed the proposed amendments to Rules 16, 26, 33, 34, 37 and 45 of the Arizona Rules of Civil Procedure with great interest. Since the comment period has now closed, I understand that it is too late for me to make any suggestions, one way or the other, on the proposed amendments. However, I would like to submit some observations regarding the discovery of electronically stored information from nonparties under Rule 45 which I believe hold true whether or not Rule 45 is amended as proposed. Should Rule 45 be amended, these observations may be appropriate to be included as part of an accompanying Commentary or Committee Note, along the lines of those proposed by the Arizona State Bar.
However, simple reference to the Advisory Committee Notes accompanying the corresponding Federal Rules of Civil Procedure, as excellent as those Notes are, does not do justice to the unique role played by nonparties in the discovery of electronically stored information and the implications of subpoenas directed to nonparty holders of electronically stored information.
Nonparties have and will continue to play a much larger role in electronic discovery situations than in conventional document discovery. In conventional discovery, while it was not unusual for subpoenas duces tecum to be directed to nonparty government agencies, telcom companies, health care providers, insurance carriers, and others for information relevant to civil litigation, these requests tended to be limited in scope and fairly particular in nature. Many government agencies and business have developed routine procedures for handling these subpoenas, including standard fees to cover the processing costs.
Requests for production of electronically stored information held by nonparties, however, will present a different set of problems to parties, nonparties, and the courts. I believe that the current proposed rules and commentary do not adequately consider these problems, nor have the recently amended federal rules.
On one level, all of the issues that arise between parties in electronic discovery addressed by the other proposed rule amendments – volume, preservation, form of production, protection of privilege, spoliation, etc. – are present in nonparty discovery under Rule 45. For this reason, the proposed amendments conform Rule 45 to Rules 26, 33, 34, and 37. But this effort to pound the square peg of nonparty discovery into the round hole of party discovery doesn’t work well. As the Petitioners point out in their reply brief dated July 23 endorsing the general thrust of the comments submitted by the Arizona State Bar and John Messing, the underlying theme of the proposed amendments is collaboration. Whether that collaboration is achieved through a mandatory “meet-and-confer” requirement akin to that found in the federal rules, or more likely through a voluntary process leading up to the Rule 16 pretrial scheduling conference, successful electronic discovery is achieved “through verbal and hopefully collegial communication between opposing counsel, and through agreements on how to handle technical and other discovery issues.” Reply to Comments Regarding Petition, p. 2. However, in the context of Rule 45, there is no mechanism for establishing such communication or reaching such agreements between the requesting party and the responding nonparty, and no role for the court unless and until the requesting party petitions the court for an order to compel under Rule 45(c)(2)(B). This is a cumbersome adversarial procedure, hardly conducive to the sort of cooperation envisioned by the petitioners.
It can be hoped, and perhaps encouraged by the Rules and any associated Commentary, that in practice, subpoenas for electronically stored information under Rule 45 be preceded by informal contact between counsel for the requesting party and the nonparty to discuss the party’s discovery needs. Certainly a Rule 45 subpoena, if issued, should be treated in practice as less of an order and more of an invitation to the dance, with an expectation that counsel for the party and nonparty can work out a reasonable arrangement without resort to the court. There currently is a lack of reported case law and legal scholarship on requests under Rule 45 for electronically stored information. Members of The Sedona Conference’s Working Group 1 are currently putting together an online survey to be administered within the next few weeks to attempt to determine what common practices are developing under the new federal version of Rule 45. I would be happy to share the results of this survey with the Court when it is completed.
On another level, we need to be prepared for a much greater number of subpoenas for electronically stored information in routine civil litigation compared to subpoena for conventional documents. This is because of a fundamental characteristic of electronically stored information that sets it apart from the world of paper documents. In the electronic world, few individuals, small business, and even sizable organizations actually own or control their information systems. They may own desktop computers and hard drives, but almost everyone depends on “third parties” (in the Rule 45 context, that means nonparties) to generate, store, and communicate electronic information. The most popular source of electronic discovery – email – is almost always in the custody of the nonparties who operate email systems that individuals use for their own personal communications. These nonparties range from employers to educational institutions to webs sites operators to telecommunications companies. This fact has long been recognized in criminal investigation, giving rise to a complicated set of statutes dealing with government access to electronically stored information held by online service providers, telecommunications providers, email and database operators, and the myriad other actors in the electronic information and communications world. In addition, as the electronic information world expands, and more and more information is generated and collected about each of us, that information is being distributed and stored in a wider variety of places by a wider variety of nonparties. Digital technology is allowing individuals and small business to perform more and more “big business” tasks by using online Application Service Providers and by taking advantage of outsourcing. Each one of these transactions creates electronically stored information held by nonparties. While some of this information may be constructively deemed within the “control, custody or possession” of a party to civil litigation for the purposes of discovery, the vast majority will not, and resort to Rule 45 to obtain electronically stored information will become more routine.
Finally, it should be noted that the courts will be asked to perform a delicate balance between the need for nonparty electronically stored information in civil litigation, and the burden that requests for this may place on nonparties. The Arizona rule, like its federal counterpart, has language that attempts to strike this balance. Whereas a party in civil litigation must establish “undue burden” to successfully resist a discovery request under Rule 26(c), the court must protect a nonparty from “significant expense” under Rule 45(c)(2)(B). Although I am not aware of any reported opinions that explicitly compare these two different standards of relief, this language articulates a generally held view that a nonparty will be provided with a greater measure protection by the courts, when the nonparty truly has no stake in the outcome of the litigation. I hope that an official comment on this different standard of relief under Rule 45 would help highlight the need for parties to seek the cooperation of nonparties in discovery, and perhaps encourage offers by parties to pay some or all of the costs of nonparty cooperation.
My background, for reference purposes, is as follows, although I am submitting this comment solely in my personal capacity and not as a representative of any organization:
2006-current
Director, Judicial Education and Content
The Sedona Conference
Sedona AZ
1999-2005
Senior Judicial Education Attorney and Senior Research Associate
Federal Judicial Center
Washington DC
1997-1999
Director of Education
Social Law Library
Boston MA
1986-1996
Supervising Attorney
Conley & Hodge
Boston MA
1985-1986
Associate
Bingham Dana & Gould
Boston MA
J.D., Northwestern University
M.S. in Library and Information Science, Simmons College
B.A, Northeastern University
Selected relevant publications:
The Sedona Conference, “The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production” (Second Edition, 2007) (Ken Withers, Managing Editor)
Kenneth Withers, "They've Moved the Two Tiers and Filled In the Safe Harbor," The Federal Lawyer (November 2005)
Kenneth Withers, "Two Tiers and a Safe Harbor: Federal Rulemakers Grapple with Electronic Discovery," The Federal Lawyer (September 2004)
Kenneth Withers, “Electronic Discovery Disputes: Decisional Guidance.” Civil Action 3, no. 2 (Summer 2004): 4 (National Center for State Courts)
Kenneth Withers and Hon. John Carroll, “Observations on the Sedona Principles,” The Sedona Conference, April 2003
Molly Treadway Johnson, Kenneth Withers & Meghan A. Dunn, “A Qualitative Study of Issues Raised by the Discovery of Computer-Based Information in Civil Litigation” (Federal Judicial Center, 2002)
Kenneth Withers, “Computer-Based Disclosure and Discovery in Civil Litigation,” Commentary, 2001 (1) The Journal of Information, Law and Technology (JILT) (University of Warwick, UK)
Kenneth J. Withers, “Computer-Based Discovery in Federal Civil Litigation,” 2000 Fed. Cts. L. Rev. 2