UNIFORM LAW COMMISSION

211 E. Ontario Street, Suite 1300, Chicago, IL  60611

312-915-0195, www.nccusl.org

Contact:            Michael Kerr, ULC Legislative Director, 312-915-0195

                        Katie Robinson, ULC Communications Officer, 312-915-0195

For Immediate Release:

NEW ACT ADDRESSES TIMELY ISSUE OF ELECTRONIC DISCOVERY

August 2, 2007 – By some recent estimates, more than 90% of business information is now stored electronically.  The state rules concerning discovery of information in civil cases were written at a time when information was mostly stored on paper.  A new act approved today by a national law group addresses the growing concern over the rules of discovery that courts must follow to access electronic information in civil cases.  The Uniform Rules Relating to Discovery of Electronically Stored Information was approved today by the Uniform Law Commission (ULC) at its 116^th Annual Meeting in Pasadena, California.

The primary purpose of the new uniform rules is to provide states with up-to-date rules for the discovery of electronic documents in civil cases.

“With the emergence of electronic technology, the extent to which information is stored electronically has vastly increased, and will continue to do so,” says Rex Blackburn, chair of the committee that drafted the new uniform rules.  “These new uniform rules should provide states with the necessary guidance governing discovery of electronically stored information.”

In 2006, the Advisory Committee on the Federal Rules of Civil Procedure amended the federal rules governing discovery of electronic documents.  The Uniform Rules conform as closely as possible to comparable provisions in the Federal Rules.  The Uniform Rules are modified, where necessary, to accommodate the varying state procedures.

The Uniform Rules provide procedures for parties in a civil case to jointly follow relating to a number of issues, including the preservation of the electronic information; the form in which the information will be produced; and the period of time in which the information must be produced.

The Uniform Rules limit the sanctions which may be imposed on a party for failure to provide electronic information that has been lost as the result of routine operation of an electronic information system.  This rule applies to information lost due to the routine operation of an information system only if the system was operated in good faith.

The Uniform Rules address the unique difficulties in accessing some electronic information by providing certain restrictions on its discovery.  For instance, a party may object to discovery of electronically stored information on the grounds that the information is not reasonably accessible because of undue burden or expense.  However, the court may order discovery of such information if it is shown that the likely benefit of the proposed discovery outweighs the likely burden or expense, and may allocate between the parties the expense of conducting the discovery.

More information on the Uniform Rules Relating to Discovery of Electronically Stored Information Act can be found at ULC’s website at www.nccusl.org. 

The drafting committee on the Uniform Rules Relating to Discovery of Electronically Stored Information was chaired by Rex Blackburn of Boise, Idaho.  Other committee members included: Albert D. Brault, Rockville, Maryland; Paul W. Chaiken, Bangor, Maine; Paul Condino, Lansing, Michigan; Cullen M. Godfrey, College Station, Texas; Lawrence M. Klemin, Bismarck, North Dakota; Theodore C. Kramer, Brattleboro, Vermont; Stephen M. Orlofsky, Cherry Hill, New Jersey; Anita Ramasastry, Seattle, Washington; Mark H. Ramsey, Claremore, Oklahoma; and James J. White, Ann Arbor, Michigan.  John L. Carroll of Birmingham, Alabama, served as the committee’s reporter.

The Uniform Law Commission, now in its 116^th year, comprises more than 350 practicing lawyers, governmental lawyers, judges, law professors, and lawyer-legislators from every state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands.  Commissioners are appointed by their states to draft and promote enactment of uniform laws that are designed to solve problems common to all the states.

A uniform act must be considered at two annual meetings by all commissioners before it can be approved.  After receiving the ULC’s seal of approval, a uniform act is officially promulgated for consideration by the states, and legislatures are urged to adopt it.  Since its inception, the ULC has been responsible for more than 200 acts, among them such bulwarks of state statutory law as the Uniform Commercial Code, the Uniform Probate Code and the Uniform Partnership Act.

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