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Last Post 07 Aug 2007 01:20 PM by  sjones
R-06-0034 Rules 16, 26, 26.1, 33, 34, 37 and 45, Arizona Rules of Civil Procedure
 5 Replies
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Author Messages

01 Nov 2006 02:10 PM



    Robert G. Schaffer (017475)
    George L. Paul (007476)
    Robert H. McKirgan (011636)
    Lewis and Roca LLP
    40 North Central Avenue
    Phoenix, AZ 85004-4429
    (602) 262-0271
    (602) 734-3777 FAX
    [email protected]

    Filed November 1, 2006


    ADOPTED as modified, effective January 1, 2008.

    17 May 2007 02:02 PM
    John H. Messing
    5151 E. Broadway Blvd., Suite 1600
    Tucson, AZ 85711
    (520) 512-5432 (o)
    (520) 512-5401 (f)
    (520) 270-1953 (c)

    I am a practicing attorney whose technical activities and associational memberships are appended at the bottom of this message.

    In general I agree with the proposed amendments with three caveats.

    First, unlike Arizona procedure, the amended Federal Rules expect the parties to prepare for and attend a mandatory scheduling conference. Under the new e-discovery amendments, it is anticipated that this process will culminate in an order regarding e-discovery (among other issues) within 120 days of filing the case and 90 days after the appearance of a defendant. This process creates impetus and momentum for counsel to meet and confer on e-discovery issues early in the case. By contrast ARCP Rule 16 is permissive only and in the experience of the undersigned is invoked rarely. Therefore treating the Arizona Rule 16 provisions as an equivalent starting point to the amended Federal Rule 16 may require further thought and reflection.

    Second, federal magistrates and judges have available to them specialized training courses in e-discovery. Budgetary constraints may not make a similar program practicable in the Arizona courts, or if it occurs, not to a degree necessary to bring the Superior Court Commissioners and Judges fully up to speed on the technical aspects of e-discovery, which can present a formidable learning curve.

    In these circumstances, it may be preferable in a majority of cases to encourage litigants to seek mediation of e-discovery matters and to expand mandatory mediation requirements accordingly. Because of the expense of e-discovery and the specialized technical training needed to mediate or adjudicate the disputes properly, assistance of qualified mediators and arbitrators should be sought both by the courts and litigants. Crowded calendars may not easily permit courts properly to accommodate e-discovery disputes.

    Third, because e-discovery is a preliminary step to the introduction for admission of electronic evidence, care should also be given to foundational requirements for electronic evidence that may be sought in e-discovery, as the opinion of Magistrate Judge Grimm in Lorraine v. Markel, NO. PWG-06-1893, D. Md.(2007), available online at http://www.mdd.uscourts.g...ISSIBILITY%20OPINION (last viewed May 17, 2007) aptly observes. Through the interplay of evidentiary rules and permissible discovery approaches, a proper balance between cost, adequate disclosure of electronic stored information, and appropriate trial practice may emerge.

    My background is as follows:

    . Chair, ABA Section of Science and Technology Law, Special 2007 Committee to review and comment upon draft Uniform Rules Relating to the Discovery of Electronically-Stored Information prepared by the National Conference Commissioners on Uniform State Law;

    . Co-founder and currently the Chair of LegalXML-OASIS, which is a national and international standards body for structured metadata used in electronic court filings, mortgages, law enforcement exchanges, land recordings and contracts;

    . Council Member, ABA Section of Science and Technology Law, 2006-7;

    . Former Chair, ABA Electronic Filing Committee (2001-5), which originated Best Practices for Electronic Service of Process;

    . Former Chair, ABA eTrust subcommittee (2004-5), which established guidelines for electronic notarization;

    . Active member of the ABA Information Security Committee (1997 to date);

    . Contributor to ABA forthcoming work on digital evidence;

    . Founder of one of the first electronic court filing projects in the United States (1995-2000), as a Pima County pilot project of the Arizona Supreme Court;

    . Developer of the electronic signature technology used by the Arizona Court of Appeals, Division Two, electronic filing and electronic court order distribution system (2001 to date);

    . Consultant to Maricopa County law enforcement for secure delivery of sensitive data between agencies and the courts;

    . Lecturer and author on information security and document metadata matters;

    . Attorney and technologist with over 10 years' experience in electronic data and evidence matters;

    . Litigation experience involving electronic evidence matters in state and federal trial and appellate courts;

    . Experience prosecuting patents applications before the Patent and Trademark Office;

    . Graduate of Princeton University and Stanford Law School, and former editor of the Stanford Law Review.

    Internet sites relating to the foregoing:



    "Two Methods of Electronic Service of Process," SciTech Lawyer, Winter
    2006, p. 14

    Cotter and Messing, "Electronic Filing in the Pima County Small Claims Court--Technical Parameters, Adopted Solutions, and some of the Legal Issues Involved", 38 Jurimetrics J. 397-406 (Jun. 24, 1998)

    John H. Messing


    22 May 2007 12:58 PM
    Petition to Amend Rules 16, 26,
    26.1, 33, 34, 37, and 45, Arizona
    Rules of Civil Procedure

    Robert B. Van Wyck, Chief Bar Counsel
    Bar No. 007800
    State Bar of Arizona
    4201 N. 24th St., Suite 200
    Phoenix, Arizona 85016-6288
    (602) 340-7241

    23 Jul 2007 04:13 PM
    RE: R-06-0034 Rules 16, 26, 26.1, 33, 34, 37 and 45, Arizona Rules of Civil Procedure

    Reply to Comments Regarding Petition to Amend Rules 16, 26, 26.1, 33, 34, 37, and 45, Arizona Rules of Civil Procedure

    Supreme Court No. R-06-0034

    George L. Paul
    Robert H. McKirgan
    Robert G. Schaffer
    Lewis and Roca LLP
    40 North Central Avenue
    Phoenix, AZ 85004-4429
    602-734-3857 FAX
    [email protected]

    06 Aug 2007 02:18 AM
    Ken Withers
    1 East Loma Lane
    Phoenix, AZ 85020
    [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:

    Director, Judicial Education and Content
    The Sedona Conference
    Sedona AZ

    Senior Judicial Education Attorney and Senior Research Associate
    Federal Judicial Center
    Washington DC

    Director of Education
    Social Law Library
    Boston MA

    Supervising Attorney
    Conley & Hodge
    Boston MA

    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


    07 Aug 2007 01:20 PM
    Subject: Re: Proposed Rule 37(f)

    Tom Allman, Senior Counsel
    Mayer, Brown, Rowe & Maw LLP
    71 S. Wacker Drive
    Chicago, IL 60606
    Former SVP and General Counsel, BASF Corporation (1994-2004)
    Office (Chicago): 312-701-8627

    [email protected]
    [email protected]

    I would like to provide a comment in support of the adoption by Arizona of a Rule of Civil Procedure based on Rule 37(f) of the 2006 Federal Amendments. In its final, elegant form, Rule 37(f) neatly provides important guidance that many of us in the corporate community felt was needed with regard to preservation obligations. Its omission from the proposed Arizona amendments would send the wrong signal about how Arizona views the importance of good faith conduct.

    An early decision of the Federal Civil Rules Advisory Committee was to leave to the evolving case law the issue of when and how preservation obligations are to be identified and applied to electronically stored information. However, because electronic information, unlike hard copy information, exists in many ephemeral forms, which multiply exponentially , the Committee recognized that mistakes will be made and some information will always "slip through" even the most reasonable of litigation holds where there is no intention to interfere with the litigation process. The final language of Rule 37(f) resulted from a careful compromise brokered in the Advisory Committee in April 2005 by, among others, the author of the Residential Funding opinion in the Second Circuit, a case often cited for an expansive sanction doctrine. Rule 37(f) simply provides that where the systems involved are "routine" - ie, not adopted or implemented to interfere with litigation - and where they are operated in "good faith" - a court should not, except in "exceptional circumstances" issue sanctions under its rules. In the early cases - and even today - some courts and some parties seem to believe that executing litigation holds on systems that routinely process information are susceptible to an infallible "giant hand" approach whereby all things are fixed, knowable and perfectable. This simply is not true. Mere negligence is not and should not be a sufficient grounds for sanctions in those circumstances in the absence of a culpable intent.

    The central value of Rule 37(f) is that it helps parties as they struggle to balance their litigation planning with their business and regulatory management of electronically stored information. The "good faith" standard is sufficiently meaningful (an absence of culpability) to guide parties, while sufficiently open-ended to apply to many circumstances not yet contemplated. In point of fact, anecdotal evidence exists that many if not most entities are undertaking methodical reviews of how the execute "litigation holds" and are investing in both personnel and training necessary to meet the reasonable expectations involved.

    Other states and the Uniform Law Commissioners have adopted Rule 37(f). For example, effective July 1, the state of Minnesota has adopted Rule 37(f) [as Rule 37.05] with the astute comment that "the good-faith part of this test is important and is not met if a party fails to take appropriate steps to preserve data once a duty to preserve arises." See

    On August 2, 2007, the Uniform Law Commission (formerly known as the National Conference of Commissioners on Uniform State Laws) adopted a set of Uniform Rules on E-Discovery which include Rule 37(f).

    For a more detailed history of how the language of Rule 37(f) evolved from my original "bright-line" proposals in 2000 to where stands today, please see: Allman, “”Rule 37(f) Meets its Critics: The Justification for a Limited Safe Harbor for ESI,” 5 Northwestern J. Tech. & Intell. Prop. 1 (2006), Allman, “Defining Culpability: The Search for A Limited Safe Harbor in Electronic Discovery,” 2006 Fed. Cts. L. Rev. 7 (2006), and Allman “The Impact of the Proposed Federal E-Discovery Rules,” 12 Rich. J. L. & Tech. 13 (Spring, 2006).

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