26

New Rule 26: General Provisions Governing Discovery; Duty of Disclosure.

(a) Required Disclosures; Methods to Discover Additional Matter

(1) Initial disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

(B) a copy of, or description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

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(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(2) Limitations

(A) By order, the court may alter the limits in these rules on the number of depositions and interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.

(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. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(C) The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account 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. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).

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(5) Claims of Privilege or Protection of Trial Preparation Materials.

(A) Information withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(B) Information produced. If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

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(f) Conference of Parties; Planning for Discovery. Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning:

(1) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made;

(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;

(3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

(4) any issues relating to claims of privilege or protection as trial-preparation material, including – if the parties agree on a procedure to assert such claims after production – whether to ask the court to include their agreement in an order;

(5) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

(6) any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c).

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Rules Committee Commentary to Rule 26

Subdivision (a). Rule 26(a)(1)(B) is amended
to parallel Rule 34(a) by recognizing that a party must
disclose electronically stored information as well as
documents that it may use to support its claims or
defenses. The term “electronically stored information”
has the same broad meaning in Rule 26(a)(1) as in
Rule 34(a). This amendment is consistent with the
1993 addition of Rule 26(a)(1)(B). The term “data
compilations” is deleted as unnecessary because it is a
subset of both documents and electronically stored
information.

Subdivision (b)(2). The amendment to Rule
26(b)(2) is designed to address issues raised by
difficulties in locating, retrieving, and providing
discovery of some electronically stored information.
Electronic storage systems often make it easier to
locate and retrieve information. These advantages are
properly taken into account in determining the
reasonable scope of discovery in a particular case. But
some sources of electronically stored information can
be accessed only with substantial burden and cost. In
a particular case, these burdens and costs may make
the information on such sources not reasonably
accessible.

It is not possible to define in a rule the
different types of technological features that may affect
the burdens and costs of accessing electronically
stored information. Information systems are designed
to provide ready access to information used in regular
ongoing activities. They also may be designed so as to
provide ready access to information that is not
regularly used. But a system may retain information
on sources that are accessible only by incurring
substantial burdens or costs. Subparagraph (B) is
added to regulate discovery from such sources.

Under this rule, a responding party should
produce electronically stored information that is
relevant, not privileged, and reasonably accessible,
subject to the (b)(2)(C) limitations that apply to all
discovery. The responding party must also identify, by
category or type, the sources containing potentially
responsive information that it is neither searching nor
producing. The identification should, to the extent
possible, provide enough detail to enable the
requesting party to evaluate the burdens and costs of
providing the discovery and the likelihood of finding
responsive information on the identified sources.

A party’s identification of sources of
electronically stored information as not reasonably
accessible does not relieve the party of its common-law
or statutory duties to preserve evidence. Whether a
responding party is required to preserve unsearched
sources of potentially responsive information that it
believes are not reasonably accessible depends on the
circumstances of each case. It is often useful for the
parties to discuss this issue early in discovery.

The volume of — and the ability to search —
much electronically stored information means that in
many cases the responding party will be able to
produce information from reasonably accessible
sources that will fully satisfy the parties’ discovery
needs. In many circumstances the requesting party
should obtain and evaluate the information from such
sources before insisting that the responding party
search and produce information contained on sources
that are not reasonably accessible. If the requesting
party continues to seek discovery of information from
sources identified as not reasonably accessible, the
parties should discuss the burdens and costs of
accessing and retrieving the information, the needs
that may establish good cause for requiring all or part
of the requested discovery even if the information
sought is not reasonably accessible, and conditions on
obtaining and producing the information that may be
appropriate.

If the parties cannot agree whether, or on
what terms, sources identified as not reasonably
accessible should be searched and discoverable
information produced, the issue may be raised either
by a motion to compel discovery or by a motion for a
protective order. The parties must confer before
bringing either motion. If the parties do not resolve
the issue and the court must decide, the responding
party must show that the identified sources of
information are not reasonably accessible because of
undue burden or cost. The requesting party may need
discovery to test this assertion. Such discovery might
take the form of requiring the responding party to
conduct a sampling of information contained on the
sources identified as not reasonably accessible;
allowing some form of inspection of such sources; or
taking depositions of witnesses knowledgeable about
the responding party’s information systems.

Once it is shown that a source of
electronically stored information is not reasonably
accessible, the requesting party may still obtain
discovery by showing good cause, considering the
limitations of Rule 26(b)(2)(C) that balance the costs
and potential benefits of discovery. The decision
whether to require a responding party to search for
and produce information that is not reasonably
accessible depends not only on the burdens and costs
of doing so, but also on whether those burdens and
costs can be justified in the circumstances of the case.
Appropriate considerations may include: (1) the
specificity of the discovery request; (2) the quantity of
information available from other and more easily
accessed sources; (3) the failure to produce relevant
information that seems likely to have existed but is no
longer available on more easily accessed sources; (4)
the likelihood of finding relevant, responsive
information that cannot be obtained from other, more
easily accessed sources; (5) predictions as to the
importance and usefulness of the further information;
(6) the importance of the issues at stake in the
litigation; and (7) the parties’ resources.

The responding party has the burden as to
one aspect of the inquiry — whether the identified
sources are not reasonably accessible in light of the
burdens and costs required to search for, retrieve, and
produce whatever responsive information may be
found. The requesting party has the burden of
showing that its need for the discovery outweighs the
burdens and costs of locating, retrieving, and
producing the information. In some cases, the court
will be able to determine whether the identified
sources are not reasonably accessible and whether the
requesting party has shown good cause for some or all
of the discovery, consistent with the limitations of Rule
26(b)(2)(C), through a single proceeding or
presentation. The good-cause determination, however,
may be complicated because the court and parties may
know little about what information the sources
identified as not reasonably accessible might contain,
whether it is relevant, or how valuable it may be to the
litigation. In such cases, the parties may need some
focused discovery, which may include sampling of the
sources, to learn more about what burdens and costs
are involved in accessing the information, what the
information consists of, and how valuable it is for the
litigation in light of information that can be obtained
by exhausting other opportunities for discovery.

The good-cause inquiry and consideration of
the Rule 26(b)(2)(C) limitations are coupled with the
authority to set conditions for discovery. The
conditions may take the form of limits on the amount,
type, or sources of information required to be accessed
and produced. The conditions may also include
payment by the requesting party of part or all of the
reasonable costs of obtaining information from sources
that are not reasonably accessible. A requesting
party’s willingness to share or bear the access costs
may be weighed by the court in determining whether
there is good cause. But the producing party’s
burdens in reviewing the information for relevance and
privilege may weigh against permitting the requested
discovery.

The limitations of Rule 26(b)(2)(C) continue to
apply to all discovery of electronically stored
information, including that stored on reasonably
accessible electronic sources.

Subdivision (b)(5). The Committee has
repeatedly been advised that the risk of privilege
waiver, and the work necessary to avoid it, add to the
costs and delay of discovery. When the review is of
electronically stored information, the risk of waiver,
and the time and effort required to avoid it, can
increase substantially because of the volume of
electronically stored information and the difficulty in
ensuring that all information to be produced has in
fact been reviewed. Rule 26(b)(5)(A) provides a
procedure for a party that has withheld information on
the basis of privilege or protection as trial-preparation
material to make the claim so that the requesting
party can decide whether to contest the claim and the
court can resolve the dispute. Rule 26(b)(5)(B) is
added to provide a procedure for a party to assert a
claim of privilege or trial-preparation material
protection after information is produced in discovery in
the action and, if the claim is contested, permit any
party that received the information to present the
matter to the court for resolution.

Rule 26(b)(5)(B) does not address whether the
privilege or protection that is asserted after production
was waived by the production. The courts have
developed principles to determine whether, and under
what circumstances, waiver results from inadvertent
production of privileged or protected information. Rule
26(b)(5)(B) provides a procedure for presenting and
addressing these issues. Rule 26(b)(5)(B) works in
tandem with Rule 26(f), which is amended to direct the
parties to discuss privilege issues in preparing their
discovery plan, and which, with amended Rule 16(b),
allows the parties to ask the court to include in an
order any agreements the parties reach regarding
issues of privilege or trial-preparation material
protection. Agreements reached under Rule 26(f)(4)
and orders including such agreements entered under
Rule 16(b)(6) may be considered when a court
determines whether a waiver has occurred. Such
agreements and orders ordinarily control if they adopt
procedures different from those in Rule 26(b)(5)(B).

A party asserting a claim of privilege or
protection after production must give notice to the
receiving party. That notice should be in writing
unless the circumstances preclude it. Such
circumstances could include the assertion of the claim
during a deposition. The notice should be as specific
as possible in identifying the information and stating
the basis for the claim. Because the receiving party
must decide whether to challenge the claim and may
sequester the information and submit it to the court
for a ruling on whether the claimed privilege or
protection applies and whether it has been waived, the
notice should be sufficiently detailed so as to enable
the receiving party and the court to understand the
basis for the claim and to determine whether waiver
has occurred. Courts will continue to examine
whether a claim of privilege or protection was made at
a reasonable time when delay is part of the waiver
determination under the governing law.

After receiving notice, each party that received
the information must promptly return, sequester, or
destroy the information and any copies it has. The
option of sequestering or destroying the information is
included in part because the receiving party may have
incorporated the information in protected trial-
preparation materials. No receiving party may use or
disclose the information pending resolution of the
privilege claim. The receiving party may present to the
court the questions whether the information is
privileged or protected as trial-preparation material,
and whether the privilege or protection has been
waived. If it does so, it must provide the court with
the grounds for the privilege or protection specified in
the producing party’s notice, and serve all parties. In
presenting the question, the party may use the content
of the information only to the extent permitted by the
applicable law of privilege, protection for trial-
preparation material, and professional responsibility.

If a party disclosed the information to
nonparties before receiving notice of a claim of
privilege or protection as trial-preparation material, it
must take reasonable steps to retrieve the information
and to return it, sequester it until the claim is
resolved, or destroy it.

Whether the information is returned or not,
the producing party must preserve the information
pending the court’s ruling on whether the claim of
privilege or of protection is properly asserted and
whether it was waived. As with claims made under
Rule 26(b)(5)(A), there may be no ruling if the other
parties do not contest the claim.

Subdivision (f). Rule 26(f) is amended to
direct the parties to discuss discovery of electronically
stored information during their discovery-planning
conference. The rule focuses on “issues relating to
disclosure or discovery of electronically stored
information”; the discussion is not required in cases
not involving electronic discovery, and the amendment
imposes no additional requirements in those cases.
When the parties do anticipate disclosure or discovery
of electronically stored information, discussion at the
outset may avoid later difficulties or ease their
resolution.

When a case involves discovery of
electronically stored information, the issues to be
addressed during the Rule 26(f) conference depend on
the nature and extent of the contemplated discovery
and of the parties’ information systems. It may be
important for the parties to discuss those systems,
and accordingly important for counsel to become
familiar with those systems before the conference.
With that information, the parties can develop a
discovery plan that takes into account the capabilities
of their computer systems. In appropriate cases
identification of, and early discovery from, individuals
with special knowledge of a party’s computer systems
may be helpful.

The particular issues regarding electronically
stored information that deserve attention during the
discovery planning stage depend on the specifics of the
given case. See Manual for Complex Litigation (4th)
§ 40.25(2) (listing topics for discussion in a proposed
order regarding meet-and-confer sessions). For
example, the parties may specify the topics for such
discovery and the time period for which discovery will
be sought. They may identify the various sources of
such information within a party’s control that should
be searched for electronically stored information. They
may discuss whether the information is reasonably
accessible to the party that has it, including the
burden or cost of retrieving and reviewing the
information. See Rule 26(b)(2)(B). Rule 26(f)(3)
explicitly directs the parties to discuss the form or
forms in which electronically stored information might
be produced. The parties may be able to reach
agreement on the forms of production, making
discovery more efficient. Rule 34(b) is amended to
permit a requesting party to specify the form or forms
in which it wants electronically stored information
produced. If the requesting party does not specify a
form, Rule 34(b) directs the responding party to state
the forms it intends to use in the production. Early
discussion of the forms of production may facilitate the
application of Rule 34(b) by allowing the parties to
determine what forms of production will meet both
parties’ needs. Early identification of disputes over the
forms of production may help avoid the expense and
delay of searches or productions using inappropriate
forms.

Rule 26(f) is also amended to direct the
parties to discuss any issues regarding preservation of
discoverable information during their conference as
they develop a discovery plan. This provision applies
to all sorts of discoverable information, but can be
particularly important with regard to electronically
stored information. The volume and dynamic nature
of electronically stored information may complicate
preservation obligations. The ordinary operation of
computers involves both the automatic creation and
the automatic deletion or overwriting of certain
information. Failure to address preservation issues
early in the litigation increases uncertainty and raises
a risk of disputes.

The parties’ discussion should pay particular
attention to the balance between the competing needs
to preserve relevant evidence and to continue routine
operations critical to ongoing activities. Complete or
broad cessation of a party’s routine computer
operations could paralyze the party’s activities.
Cf. Manual for Complex Litigation (4th) § 11.422 (“A
blanket preservation order may be prohibitively
expensive and unduly burdensome for parties
dependent on computer systems for their day-to-day
operations.”) The parties should take account of these
considerations in their discussions, with the goal of
agreeing on reasonable preservation steps.

The requirement that the parties discuss
preservation does not imply that courts should
routinely enter preservation orders. A preservation
order entered over objections should be narrowly
tailored. Ex parte preservation orders should issue
only in exceptional circumstances.

Rule 26(f) is also amended to provide that the
parties should discuss any issues relating to
assertions of privilege or of protection as trial-
preparation materials, including whether the parties
can facilitate discovery by agreeing on procedures for
asserting claims of privilege or protection after
production and whether to ask the court to enter an
order that includes any agreement the parties reach.
The Committee has repeatedly been advised about the
discovery difficulties that can result from efforts to
guard against waiver of privilege and work-product
protection. Frequently parties find it necessary to
spend large amounts of time reviewing materials
requested through discovery to avoid waiving privilege.
These efforts are necessary because materials subject
to a claim of privilege or protection are often difficult to
identify. A failure to withhold even one such item may
result in an argument that there has been a waiver of
privilege as to all other privileged materials on that
subject matter. Efforts to avoid the risk of waiver can
impose substantial costs on the party producing the
material and the time required for the privilege review
can substantially delay access for the party seeking
discovery.

These problems often become more acute
when discovery of electronically stored information is
sought. The volume of such data, and the informality
that attends use of e-mail and some other types of
electronically stored information, may make privilege
determinations more difficult, and privilege review
correspondingly more expensive and time consuming.
Other aspects of electronically stored information pose
particular difficulties for privilege review. For example,
production may be sought of information
automatically included in electronic files but not
apparent to the creator or to readers. Computer
programs may retain draft language, editorial
comments, and other deleted matter (sometimes
referred to as “embedded data” or “embedded edits”) in
an electronic file but not make them apparent to the
reader. Information describing the history, tracking,
or management of an electronic file (sometimes called
“metadata”) is usually not apparent to the reader
viewing a hard copy or a screen image. Whether this
information should be produced may be among the
topics discussed in the Rule 26(f) conference. If it is, it
may need to be reviewed to ensure that no privileged
information is included, further complicating the task
of privilege review.

Parties may attempt to minimize these costs
and delays by agreeing to protocols that minimize the
risk of waiver. They may agree that the responding
party will provide certain requested materials for initial
examination without waiving any privilege or
protection — sometimes known as a “quick peek.” The
requesting party then designates the documents it
wishes to have actually produced. This designation is
the Rule 34 request. The responding party then
responds in the usual course, screening only those
documents actually requested for formal production
and asserting privilege claims as provided in Rule
26(b)(5)(A). On other occasions, parties enter
agreements — sometimes called “clawback
agreements”— that production without intent to waive
privilege or protection should not be a waiver so long
as the responding party identifies the documents
mistakenly produced, and that the documents should
be returned under those circumstances. Other
voluntary arrangements may be appropriate depending
on the circumstances of each litigation. In most
circumstances, a party who receives information under
such an arrangement cannot assert that production of
the information waived a claim of privilege or of
protection as trial-preparation material.

Although these agreements may not be
appropriate for all cases, in certain cases they can
facilitate prompt and economical discovery by reducing
delay before the discovering party obtains access to
documents, and by reducing the cost and burden of
review by the producing party. A case-management or
other order including such agreements may further
facilitate the discovery process. Form 35 is amended
to include a report to the court about any agreement
regarding protections against inadvertent forfeiture or
waiver of privilege or protection that the parties have
reached, and Rule 16(b) is amended to recognize that
the court may include such an agreement in a case-
management or other order. If the parties agree to
entry of such an order, their proposal should be
included in the report to the court.

Rule 26(b)(5)(B) is added to establish a
parallel procedure to assert privilege or protection as
trial-preparation material after production, leaving the
question of waiver to later determination by the court.