TO CLARIFY THE PROCEDURE FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND TO MAKE CONFORMING CHANGES TO THE NORTH CAROLINA RULES OF CIVIL PROCEDURE.
All of the amendments are to GS 1A-1. Makes changes to incorporate gender neutral language where possible.
Rule 16. Pre-trial procedure; formulating issues. Provides that if a pre-trial conference is held, the judge must (was, may) make an order that reviews the action taken at the conference which may limit (was, which limits) the issues for trial to those not disposed of by admissions or agreements of counsel. Also requires the order to include any amendments allowed to the pleadings, and any agreements made by the parties on any of the matters considered. Makes a conforming change to reflect the reorganizing of Rule 26.
Rule 26. General provisions governing discovery. Provides that the scope of discovery includes electronically stored information. Defines electronically stored information as reasonably accessible metadata that enables the party requesting discovery the ability to access such information as the date sent, the date received, the author, and recipients. The phrase does not include other metadata unless the parties are in agreement to provide it upon a motion of a party and a showing of good cause.
Imposes additional limitations on electronically stored information, providing that in addition to the limitations imposed by new subdivision (b)(2) [currently codified under subdivision (b)(1)], discovery of electronic stored information is subject to the limitations set out in Rule 34(b). Allows the court to specify the condition for discovery, including the allocation of discovery costs.
Enacts subdivision (7) to provide criteria when a party withholds information that is otherwise discoverable by claiming that the information is privileged or protected as trial preparation material. Also provides criteria for the inadvertent production of material in response to a discovery request which the producing party is claiming as privileged or as trial preparation material.
Provides that a party seeking a protective order to limit discovery on the basis that the electronically stored information sought is from a source that is not reasonably accessible because of undue burden or cost has the burden of showing that the basis exists. Provides that even if the burden of showing is made, the court may still order that the information be produced if the requesting party shows good cause, but only after the court considers the limitations of subsection (b)(2) of Rule 26. Renumbers subdivisions under subsection (b) of Rule 26 and makes conforming changes to reflect the renumbering of the subdivisions.
Amends subsection (f) to provide criteria for the scheduling of the discovery meeting, the setup and structure of the discovery conference, and the content of the discovery plan (was, discovery conference). Permits the court to combine the discovery conference with a pretrial conference as authorized under Rule 16, except specifies that a discovery conference in a medical malpractice action is to be governed by subsection (g) of Rule 26 (currently subsection (f1)). Makes additional conforming and technical changes to reflect reorganization of the subsections and subdivisions of Rule 26.
Rule 33(c). Option to produce business records. Current law allows a party to answer an interrogatory by specifying the business records from which the answer may be derived. Provides that such a specification is to be in sufficient detail to allow the party proposing the interrogatories to locate and identify the records where the answers may be found.
Rule 34. Production of documents, electronically stored information, and things; entry upon land for inspection and other purposes. Provides criteria for the production of electronically stored information. Provides that the request for electronically stored information may specify the form or forms in which the information is to be produced. Allows the party upon whom the request for production is served to object to production of electronically stored information as not reasonably accessible because of undue burden or cost. Permits the party asked to produce the electronically stored information to also object to the form in which the information is requested. Provides additional criteria regarding the procedures for producing documents or electronically stored information. Makes organizational changes
Rule 37. Failure to make discovery; sanctions. Provides that if a motion to compel discovery is based on an objection to production of electronically stored information from sources that the objecting party has identified as not being accessible because of undue burden or cost, the party objecting to producing the electronically stored information has the burden of showing that the basis for the objection exists. Provides that unless there are exceptional circumstances, a court cannot impose sanctions on a party for not providing electronically stored information that was lost as a result of routine, good-faith operation of an electronic information system.
Rule 45. Subpoena. Identifies electronically stored information as evidence to be gathered via a subpoena. Provides that a subpoena may specify the form or forms in which electronically stored information is to be produced. Clarifies that the provisions regarding subpoenas apply to records, books, papers, documents, electronically stored information, or tangible things. Provides applicable criteria regarding producing electronically stored information in response to subpoenas. Makes organizational and conforming changes.
Effective October 1, 2011, and applies to all cases on or after that date.
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