As the provisions governing the discovery of Electronically Stored Information (“ESI”) in the Federal Rules of Civil Procedure (“FRCP”) have been amended, many states have also amended their court rules and rules of civil procedure to address eDiscovery. Often, these rules are modeled after the FRCP’s provisions, but key differences remain. Litigators must be familiar with state court rules, therefore, when engaging in eDiscovery in state court. This article provides a brief overview of New Jersey’s Court Rules on eDiscovery and compares these rules to the related FRCP rules.
Scope of ESI Discovery
New Jersey Court Rule 4.10-2 governs the scope of discovery. In many aspects, Rule 4.10-2 mirrors Fed. R. Civ. P. 26 in defining the scope of eDiscovery. In conjunction, Rules 4.10-2(a) and 4.10-2(g) permit the discovery of ESI that is both relevant and proportional to the case at bar. Rule 4.10-2(g) delineates similar factors to assess proportionality (i.e., whether burden or expense of the proposed discovery outweighs its likely benefit) as does Fed. R. Civ. P. 26(b)(1): the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Additionally, Rule 4.10-2(f)(2) contains the same limitation to discovery of ESI that is “not readily accessible” as does Fed. R. Civ. P. 26(b)(2)(B): A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost (unless good cause is shown). In these ways, the provisions regarding the scope of eDiscovery are largely similar under both the New Jersey Court Rules and the FRCP.
The New Jersey Court Rules do specifically address one important topic that the FRCP remains less detailed on: metadata. The FRCP does not contain any specific provisions on the discovery of metadata, leaving courts to determine whether the discovery of metadata is appropriate in given cases. By contrast, on September 1, 2016, the New Jersey Court Rules were amended to contain a provision specifically addressing the discovery of metadata. This provision, Rule 4.10-2(f)(1) states:
A party may request metadata in electronic documents. When parties request metadata in discovery, they should consult and seek agreement regarding the scope of the request and the format of electronic documents to be produced. Absent an agreement between the parties, on a motion to compel discovery or for a protective order, the party from whom discovery is sought shall demonstrate that the request presents undue burden or costs.
The official comment to Rule 4.10-2(f)(1) defines metadata:
“Metadata” is embedded information in electronic documents that is generally hidden from view in a printed copy of a document. It is generated when documents are created or revised on a computer. Metadata may reflect such information as the author of a document, the date or dates on which the document was revised, tracked revisions to the document, and comments inserted in the margins. It may also reflect information necessary to access, understand, search, and display the contents of documents created in spreadsheet, database, and similar applications.
As companies and businesses increasingly rely on sophisticated electronic document and file-management systems, the amount of metadata produced will only continue to grow. This metadata may very well contain information that is critical to an action. While under the FRCP, metadata may be discoverable in an action based on a proportionality analysis in accordance with Fed. R. Civ. P. 26(b), New Jersey Court Rule 4.10-2(f)(1) more clearly delineates that a party may request the discovery of metadata in ESI and that the responding party must demonstrate an undue burden or cost to prevent the discovery of metadata.
Production of ESI
New Jersey Court Rule 4:18-1 governs the production of ESI. Rule 4.18-1(b)(1), like Fed. R. Civ. P. 34(b)(1)(C), allows a party to specify the form or forms in which ESI is to be produced when requesting discovery. Additionally, Rule 4.18-1(b)(2) and Fed. R. Civ. P. 34(b)(2)(E) provide the same guidelines as to the responding party to a discovery request for ESI. Unless the parties have agreed otherwise or the court orders otherwise, the party responding to the discovery request must produce the ESI as it is kept in the usual course of business or must organize and label the ESI to correspond with the categories in the request. If a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. In these ways, New Jersey Court rule 4:18-1 and Fed. R. Civ. p. 34(b) are substantially similar regarding the production of ESI.
The New Jersey Court Rules, however, again provide specific guidance regarding the production of metadata. The official comment to Rule 4:18-1 provides significant discussion of the production of metadata, encouraging litigants and litigators to: (1) be aware that metadata may be present in electronic documents; (2) meet and confer about the format in which they will produce electronic documents; (3) seek agreement on whether the receiving party may review unrequested metadata in electronic documents; (4) agree on the manner in which metadata will be addressed in a privilege log; (5) consider the amount of metadata to be produced and the associated costs; and (6) consider ethical obligations before reviewing metadata.
Preservation of ESI
One area where there is significant divergence between the New Jersey Court Rules and the FRCP is the preservation of ESI. After the 2015 amendments, Fed. R. Civ. P. 37(e) allows the court to sanction a party who fails to take reasonable steps to preserve ESI during, or in anticipation of, litigation. This 2015 amendment replaced the previous “Safe Harbor” provision of Fed. R. Civ. P. 37(e), which provided “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” By contrast, the New Jersey Court Rules do not contain any specific provisions regarding a party’s duty to take reasonable steps to preserve ESI. Additionally, New Jersey Court Rule 4:23-6 retains the “Safe Harbor” provision regarding routine, good-faith operation of an electronic information system as contained in Fed. R. Civ. P. 37(e) prior to the 2015 amendments. Thus, at least under the language of these rules, the duty to preserve ESI may be may be ripe for amendment under the New Jersey Court Rules.
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