Indiana State E-Discovery Rules

indiana did not amend trial rule 33. however, nothing in the indiana trial discussions. the better practice for indiana litigators will be to discuss rules and the federal e-discovery rules. courts discovery of electronically-stored information published by the national been or should be put in place to prevent the destruction of such new hampshire superior court rule 62. iowa, kansas, maryland, nebraska, new mexico, ohio, tennessee, virginia, and washington demonstrates "good cause" for its need of the "not reasonably accessible" to thank kevin toner for his contributions to this article. mr. toner is a partner at baker & analysis reveals four notable differences privilege or work product protection (a) indiana trial rule 34 against damages or payment of damages resulting from such request. . . ." 2008.4 , minnesota14 allows requesting party to specify of civil procedure. however, not all of the federal amendments were amended federal rule 26 permits a court to shift the cost to the warrant and the parties may suggest. cost or burden. but the requesting prevents courts from imposing e-discovery concept frcp rule ind. r. trial proc. required to meet in-person or by telephone to discuss any issues relating to requesting party for production of esi that is "not reasonably accessible because preservation of esi at the outset of litigation, which can assist with overall court to order the requesting party to pay for extraordinary steps taken by the i. differences between the state e-discovery rules reasonable efforts-retrieve the data or information requested or produce it in the fed. r. civ. p. 34 and advisory committee's note (1970). indiana's trial rule 26 was not amended to include an automatic 3 production of electronic or magnetic data and specify the form in reasonably accessible. courts may handled in its court on a case-by-case basis or on a case-wide basis through the one can expect important differences among the states for years to come. for rule s motion, a party responding to a e-discovery concept frcp rule ind. r. trial proc. rule 34(c)(3) states "[t]he request shall contain the matter provided in steps required to retrieve and produce the information. 7 2007, http://www.technologycounsel.org/wp-content/uploads/2007/10/staterulesoctober.pdf. of obtaining access to such information and who shall bear said sanctions on a party for failing to 4. rule 45: subpoena ccp 1424; 1460; 1461 and 1462. be produced, data preservation, and privilege waiver. currently, utah and requesting party pay the reasonable expenses of any extraordinary accessible because of undue burden or cost." however, if the requesting party 1. rule 16: scheduling (pretrial) conference/order &enrollmentid=10989687&header=1&path=https://content.westlegaledcenter.com/c1/progra parties and their attorneys in a scheduling conference. this scheduling order unless: 1) the trial court orders a discussion of e-discovery issues under rule 16, texas r. civ. p. 196.4. arizona r. civ. p. 16, 26, 33, 34, 37, and 45. 8 structuring conference with the court to discuss: new hampshire requires litigants to meet no later than 20 days before the referred to as the "e-discovery rule s," made it clear that discovery of producing party to retrieve and produce esi 7 incorporated into the indiana e-discovery rules. because the 2008 indiana example, it is already being reported that tennessee's draft of its state the same for the party serving the interrogatory as for the party served." rules prohibits a party from specifying esi in response to an interrogatory and party must produce the electronic or magnetic data that is 4) the no automatic meet-and-confer model.6 mmaterial/krollwstlglwrks/av47758karlsppt_1193166570365.pdf. in state litigation to discuss issues such as data preservation, production format, produced. "not reasonably accessible due to undue burden or cost" to shift production cost. information, and the manner in which parties propose to guard 19 electronically-stored information, august 2006, texas rule s, became effective before the december 1, 2006, amendments to e-discovery rules.) from a non-party, he or she should be mindful of this possible interpretation and the data or information requested or produce it in the form requesting esi such as specifying form. thus, a requesting party can specify production format. permits the https://westlegaledcenter.com/program/pdf_template.jsf?id=11073860&contentid=11056237 1. texas model � the mandatory cost-shifting model e-discovery concepts from the amended federal rules of civil procedure: , montana13 process, similar to federal rule 26(f), in their state e-discovery rules.10 new jersey civ. p. and court rules 1:9, 4:5b, 4:10; 4:17, 4:18; and 4:23. http://www.ncsconline.org/images/ediscccjguidelinesfinal.pdf. searching). first 10 states to the indiana state e-discovery rule s. next, this article produce esi in one format only. (emphasis added) thus, this "payment of damages resulting" from the subpoena indiana was the eleventh state to adopt e-discovery rules with the metadata files to allow for rule 26(b)(2)(b) rule 26(c)(9) montana r. civ. p. 16, 26, 33, 34, 37, and 45. each state trial court to retain its broad discretion and flexibility in discovery production (e.g., excel file produced through the e-discovery rules adopted. as enacted, the indiana state before discovery begins and discuss issues such as the format in which esi is to amendments to the indiana rules of trial procedure, effective on january 1, to which such information is reasonably accessible, the likely costs . although most courts and . indiana r. civ. p. 26, 34, and 37. non-party by simply stating "[a] witness or person other than a party may be new hampshire (2007), minnesota (2007), louisiana (2007), utah (2007), electronic information system. "good cause" is shown, the court may specify conditions for the discovery, 12 trial rule 16 allows a court to order pre-trial conferences to discuss, "good cause" is shown, the court 6 development of local rules that could require meet-and-confer sessions or the party may still obtain discovery of the 2007, protected esi was inadvertently to include agreements, such as "clawback" or "quickpeek" agreements, within a requires the responding party to subsection (b) of this rule." rule 34(b), as amended, contains procedures for e-discovery rules blends together and the amendments to the federal rules of litigators interpreted this phrase to include computerized records, some e-discovery rules allow each trial court to determine whether e-discovery is best drafting decisions is unknown. this author believes that the drafters intended for state court litigation, each state must decide whether to amend its court rules to under federal rule 16(b), a federal judge must issue a scheduling order rules and to the federal e-discovery rules the responding party objects to the request because it "cannot-through undue burden or expense on a person subject to that subpoena." in addition, the information lost as a result of the rule 34(c)(a) permits a party to request electronically stored information from a the federal rules of civil procedure. http://www.technologycounsel.org/wp-content/uploads/2007/10/staterulesoctober.pdf. center for state courts.19 arizona16 without waiver, provided that the thus, before an indiana litigator makes a trial rule 34(c) request for esi associated extracted text and 9 with locating and producing the requested esi, a very different result than under , louisiana15 discretionary cost-shifting model, 3) the automatic meet-and-confer model, and inclusion of e-discovery agreements in pretrial orders. to this author's ascertained if the "burden of deriving or ascertaining the answer is substantially (interrogatories) or rule 45 (subpoenas). the remainder of this article focuses however, trial rule 34 is also different from federal e-discovery rule 45 indiana trial rule 34 is similar to federal e-discovery rule 45. e-discovery amendment process for each state may be necessary over months see allman at see thomas y. allman, state by state summary report of e-discovery efforts, october 11, 5 "good cause" is shown. where such desired format. indiana trial rule 16 was not amended. consequently, state courts in orders amending rules of trial procedure, september 10, 2007, indiana are not specifically advised or required to consider e-discovery issues or questioned if the phrase included all types of electronic records and files. the the state of e-discovery: an overview of state and uniform rulemaking efforts, october 27, discuss esi issues at the outset of the case, neither do the rules prohibit such minnesota r. civ. p. 16, 26, 33, 34, 37, and 45. (emphasis added.) routine, good faith operation of an not reasonably accessible esi if 4. no automatic meet-and-confer model: the majority view the amendments after the december 1, 2006, amendments to the federal rules identification of esi that is not http://www.in.gov/judiciary/orders/rule-amendments/2007/trial-091007.pdf. and that rule was amended. such information from a state pretrial order either. hence, the state courts in 14 texas was the first to enact state e-discovery rules in 1999, followed by lisa j. berry-tayman is an attorney in the business litigation group of baker & daniels llp, allows a party to request aid in the disposition of the action." thus, an indiana judge in this context could pretrial order. but no provisions in the indiana rules of trial procedure exclude the texas model, the discretionary cost-shifting model, the automatic arizona (2008), and indiana (2008).5 between the e-discovery rules enacted by these states, which have been provide electronically stored civil procedure18 2. the discretionary cost-shifting model , and indiana17 2. rule 26: no automatic meet-and-confer [to] pay the reasonable expenses of any extraordinary steps required to retrieve however, neither of these states require a court to order cost-shifting. instead, if rule 37(f) rule 37(e) with these rule s. if the court orders the responding party to tailor each request accordingly. in addition, before any work begins to locate or responding party to object to the or 2) the parties agree to a "de facto" meet-and-confer process. the federal rules. further, the indiana e-discovery rules require no analysis of as .xls file) or searchable data 16 then affording the requesting party an opportunity to inspect and copy the esi. while the indiana state e-discovery rules do not require attorneys to costs, the form in which such information is to be produced, the under rule 26(f)(1) of the utah rules of civil procedure, parties are clearly, the drafters of the indiana e-discovery rules modeled many of indiana state e-discovery rules: comparison to other state e-discovery under amended trial rule 34, esi may be requested from a non-party. 15 procedures for non-party requests for production are contained within rule 34 ii. indiana state e-discovery rules compared to the federal e-discovery comply with the request, the court must also order that the id. to obtain discovery of data or information that exists in electronic or procedure, which allows a producing responsible for the subpoena must "take reasonable steps to avoid imposing after receiving the rule 26(f) report from the parties, or after consulting with the understandably, indiana did not amend trial rule 45 because the rule 34(b)(iii) rule 34(b) rule." rule 34(a), as amended, allows esi to be requested from a party. thus, production format from a non-party and a non-party can object to the requested among other things, "the simplification of issues" and "such other matters as may had enacted e-discovery rules and 13 states are now drafting e-discovery rules.3 the witness or person to whom it [the subpoena] is directed is entitled to security rules of court do not contain committee notes, the rational behind these 10 amended their rules to include e-discovery rules. alaska, district of columbia, florida, illinois, interrogatory by specifying the esi from which an answer could be derived or the federal e-discovery rules and the indiana e-discovery rules make the majority of the states that have enacted state e-discovery rules did limit the discovery of esi when, upon under federal rule 26(f), parties in federal litigation are required to meet are working on state e-discovery rules. the remaining states have not reported work on state production of accessible esi and , in that it provides protections to a non-party by requiring the subpoena state "that december 1, 2006, amendments to the federal rules of civil procedure, often 3. automatic meet-and-confer model will allow both sides to establish a workable protocol for the production and and the conference of chief justices guidelines for state trial meet-and confer model, and the no automatic meet-and-confer model 2 rule 34(a) rule 34(a) automatic meet-and-confer process under rule 26, and did not amend rule 33 need for and the extent of any holds or other mechanisms that have and produce the information."9 iii. conclusion and privilege waiver. participation in a "de facto" meet-and-confer conference . the last sentence of texas e-discovery issues by conducting a "de facto" meet-and-confer conference early court to assess. state e-discovery rule s. procedures, or format of electronic production at the outset of state litigation http://www.technologycounsel.org/wp-content/uploads/2007/10/staterulesoctober.pdf. responding party cannot -- through reasonable efforts -- retrieve rule 196.4 contains this mandatory cost-shifting provision: focusing her practice in the areas of e-discovery and records management. lisa would like 17 as shown by the chart below, indiana adopted many, but not all, of the see allman at may include provisions for discovery of esi or any agreements between the describe a category of discoverable information2 1 shall not be called until after reasonable opportunity for the completion of reasonably accessible due to undue of undue burden or cost." in contrast, the texas state e-discovery rules require a since the 1970's, the phrase "data compilations" has been used to format for esi to be either native amended federal e-discovery rule 45 allows esi to be subpoenaed from mississippi r. civ. p. 26(b)(5) and idaho r. civ. p. 34. a non-party but includes protections for the non-party. first, the person meet-and-confer process. thus, no requirement exists for counsel to discuss 4 included in this majority are new jersey12 form. a non-party is only required to produce the same esi in one form. such as cost-shifting. described as: 1) the texas model � mandatory cost-shifting model, 2) the suggests that the requesting party is responsible for any and all costs associated daniels llp. demonstrates that the esi is not discusses the similarities and differences between the indiana state e-discovery include guidelines for the discovery of esi. as of october 11, 2007, 11 states "electronically stored information." on these differences between the federal e-discovery rules and the indiana by: lisa j. berry-tayman1 soon as practicable after the commencement of an action. likewise, provides that "[u]nless otherwise ordered by the court the pre-trial conference non-party is not required to produce esi that is identified as "not reasonably see amanda karls and thomas y. allman, presentation materials for audio presentation of request to produce esi responding party in its ordinary course of business. if the overall cost. (e.g., tiff or pdf images with under amended federal rule 33, the answering party may answer an the adequacy of an interrogatory answered with esi is therefore left to the trial 13 information stored electronically or in any other medium, the extent may specify conditions for discovery, discovery planning and litigation budgeting. magnetic form, the requesting party must specifically request indiana did not amend rule 16 (pre-trial conferences), did not adopt an idaho, louisiana, minnesota, montana, new hampshire, new jersey, and utah have including cost-shifting to the requesting party. provides the "fall back" production 11 december 1, 2006, amendments to the federal rules of civil procedure. indiana, arizona, rule 34(b)(ii) rule 34(b) order a discussion of esi issues. note, however, indiana trial rule 16(b) non-party to determine if the value of the requested information is worth the knowledge, no such local rules have been developed in indiana yet. 18 and obtain the return of materials electronically stored information ("esi") is permitted in federal litigation. but for preserving discovery information and developing a stipulated discovery plan, as indiana litigators with multi-state litigation practices, ongoing research of the state form requested," a court in idaho or mississippi may order "the requesting party this article discusses the variations in e-discovery rules enacted by the information. . . .11 the completion of discovery. not include an automatic meet-and-confer process in their amendments. when the other states will enact state e-discovery rules remains muddy. for creates a default "clawback" requested, the responding party must state an objection complying discovery." if the trial court does not order such a conference, a party's request rule 34(b) rule 34(b) represent the main variations between the e-discovery rules adopted thus far. mississippi and idaho fashioned their rules after the texas model. 8 which the requesting party wants it produced. the responding it clear that esi is discoverable in federal or state litigation in indiana. if and new hampshire are the only states to include an automatic meet-and-confer limits the scope of discovery to mississippi (2003), idaho (2006), new jersey (2006), montana (2007), against waiver of privilege claims with respect to such conference of chief justices, guidelines for state trial courts regarding discovery of see utah r. civ. p 26(f)(1) and new hampshire superior court rule 62. e-discovery issues such as preservation of esi, privilege waiver clawback 196.4 electronic or magnetic data. for mandatory discussion of e-discovery issues may not be available until after requested to produce or permit the matters allowed by subsection (a) of this rule 26(b)(5) rule 26(b)(5) (more specifically, texas and mississippi enacted state e-discovery rules prior to the information, the court may order the production by the non-party. where such parties regarding inadvertent production of privileged information. or even years to come. interestingly, the e-discovery rules for mississippi and idaho, like the 3. rule 33: interrogatories indiana have the flexibility to address or not address esi issues as the case may collect esi, indiana litigators would be wise to request a cost quote from the party post-production to assert . . . the scope of discovery, including particularly with respect to responsive to the request and is reasonably available to the