Proposed Rules Archives

• Proposed Changes to CR 34 - Producing Documents, Electronically Stored Information, and Things or Entry onto Land for Inspection and Other Purposes (in Word Format)
• Comments Received for CR 34 - Producing Documents, Electronically Stored Information, and Things or Entry onto Land for Inspection and Other Purposes

Suggested New Rule

SUPERIOR COURT CIVIL RULES (CR)
Rule 34: Producingtion of Documents, Electronically Stored Information, and Things and or Entry Upon Onto Land for Inspection and Other Purposes

Submitted by the Board of Governors of the Washington State Bar Association

This suggested amendment addresses the particular challenges posed by the discovery of electronically stored information (“ESI”).

Background.

Since the 2006 changes to various Federal Rules of Civil Procedure, the WSBA’s Court Rules and Procedures Committee has considered whether Washington should consider similar amendments and, if so, the contours of the amendments to suggest. This effort involved the study of not only the federal amendments and their related Advisory Committee Notes, but also a sampling of detailed information and testimony from the federal amendment process, such secondary materials as the National Conference of Commissioners on Uniform State Laws’ “Uniform Rules Relating to The Discovery of Electronically-Stored Information,” and information relating to what other states were doing regarding what is often called “e-discovery,” including other states’ proposals for rule amendments.

The Committee actively solicited the input of a number of stakeholder groups, including the Washington State Association for Justice (formerly the Washington State Trial Lawyers Association), Washington Defense Trial Lawyers, Washington State Association of Municipal Attorneys, Washington Association of Prosecuting Attorneys, WSBA Litigation Section, Superior Court Judges’ Association, and various non-profit organizations within the Access to Justice community. The Committee benefitted from the input of representatives of those groups and from others, including the International Association of Defense Counsel and the Center for Constitutional Litigation.

Building on that foundation, in 2009, the WSBA Court Rules and Procedures Committee suggested amendments to CR 26, 33, 34, 37 and 45 to conform, where appropriate, to the 2006 federal ESI amendments. By conforming where possible to the federal rules, the WSBA Court Rules and Procedures Committee believed parties and courts in Washington would be able to refer to and rely on federal authority and scholarship in dealing with e-discovery issues.

At the September 2009 meeting, the Board of Governors declined to recommend the proposed changes to CR 26, 33, 34, 37 and 45. The Board of Governors asked the WSBA Court Rules and Procedures Committee to join with the ATJ to develop new proposals addressing ESI. Over the past two years, the WSBA Court Rules and Procedures ESI Subcommittee and the ATJ Technology Committee have worked together on CR 34. The resulting proposal has been informally vetted to several SCJA members, who have each agreed that these changes are needed to clarify the proper process for producing ESI and to reduce unnecessary motions practice. and The ATJ Board has also vetted and approved this proposal, and ATJ and the WSBA jointly recommend this version of CR 34 as a necessary and useful procedural aid to the courts and the parties whenever discovery of ESI is at issue.

Purpose of this Suggested Amendment

This suggested amendment would introduce the phrase “electronically stored information” into CR 34 to acknowledge that ESI of all types is discoverable. This suggested amendment would also enhance readability by borrowing the organization and headings employed in the federal rules.

Substantively, this suggested amendment would address the format in which ESI is to be produced. The amended rule would permit the requesting party to designate the form or forms in which it wants ESI produced. The amended rule would not require the requesting party to choose a form of production, however, because a party may not have a preference or may not know what form the producing party uses to maintain its ESI. The amended rule also would provide a framework for resolving disputes over the form of production, in the event that the producing party objects to the requested format. If a request does not specify a form of production, or if the producing party objects to the requested form, the producing party must notify the requesting party of the form in which it intends to produce the ESI – with the option of producing either: (1) in a form in which the information is ordinarily maintained; or (2) in a reasonably usable form. If the court must resolve a dispute regarding the form of production, it will use options (1) and (2) as the standard to guide its decision.