13.3 ELECTRONIC DISCOVERY RULES, PROCESS AND OBLIGATIONS
13.301 The Federal Rules of Civil Procedure and Their Virginia Counterparts.
A. In General. After years of considering the impact of electronic information on discovery in civil matters,40 the Federal Rules of Civil Procedure 16, 26, 33, 34, 37, and 45,41 were amended in 2006 to address ESI in a number of ways, including provisions requiring parties to address ESI in an initial conference, exclude from discovery ESI that is not reasonably accessible, provide a procedure by which parties may seek the return of inadvertently produced privileged documents or work product, specify the form of production, provide limited "safe harbor" protections against spoliation sanctions for the loss of ESI resulting from routine, good-faith use of an electronic information system.
In response to the 2006 amendments to the Federal Rules, the Advisory Committee on the Rules of Court of the Judicial Council of Virginia42 published proposed amendments to the Rules of the Supreme Court of virginia43 and initiated a rulemaking process that largely followed the intent and spirit of the 2006 amendments to the Federal Rules.44 The Supreme Court of Virginia approved amendments to Virginia Rules 4:1, 4:4, 4:8, 4:9, 4:9A, and 4:13, effective January 1, 2009.45
In 2015, Federal Civil Rules46 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84 were amended generally to address the need to reduce litigation costs and delays,47 and specifically, to restate or modify provisions related to the scope of discovery, the level of specificity required in discovery responses, the standard by which courts may sanction for spoliation, and the expectation that parties, not just the Courts, act in consideration of proportionality.48 Virginia did not, however, adopt these newer Federal Rules in lock-step. Rather, effective January 1, 2019, Virginia adopted a new provision related to ESI protocols, Virginia Rule 4:1(b)(7), and effective March 21, 2019, Virginia enacted a new law, Virginia Code Section 8.01-379.2:1(B), that parallels the 2015 Federal Rule amendments related to spoliation of evidence, but also differs in significant ways.49
B. Emphasis on Cooperation and Proportionality—Federal Rule 1. Federal Rule 1 defines the scope and purpose of the Federal Rules. The 2015 amendments clarified that the Federal Rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding" (emphasis added). As explained in the Committee Note, Rule 1 was amended to emphasize that the parties and their counsel share the responsibility with the courts to employ the rules in the same way, and to "discourage the overuse, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure."
C. Early Attention to ESI—Federal Rules 16(b) and 26(f), Virginia Rules 4:1(b)(7) and 4:13. Federal Rule 16(b) governs scheduling orders and Federal Rule 26(f) governs the initial planning conference between the parties and the discovery plan that results from the conference.
Federal Rule 16 provides that the scheduling order entered by the court may include provisions for the disclosure or discovery of ESI and "any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced."50 The 2015 amendments further clarified that scheduling orders may address the preservation of ESI,51 and also may establish a requirement that parties must request a pre-motion conference with the court prior to moving for an order related to discovery.52
Federal Rule 26(f) requires parties to "discuss discovery of electronically stored information during their discovery-planning conference."53 Currently, Rule 26(f) requires that the parties' proposed discovery plan include:
the parties' views and proposals on . . .
(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502.55
The 2006 Committee Notes explained that the parties may reach a "clawback" agreement, whereby the parties agree to return any privileged documents that are inadvertently produced. Pursuant to the amendments to Rule 16 discussed above, if such an agreement is reached, the court may include it in the scheduling order. The Committee Notes to Rule 16 stated that "[i]n most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waive[s] a claim of privilege or of protection as trial preparation material."56
Although the Virginia Supreme Court did not, as a general matter, adopt the 2015 Federal Rule amendments, the ESI Committee continued to examine the issues related to ESI discovery and recognized that a number of potential issues could be avoided if such issues were proactively addressed, and that the parties and the court would benefit if the parties could agree up-front on certain key aspects of ESI discovery, including the relevant scope of discovery, form of production, and treatment of inadvertently produced privileged materials. As such, the ESI Committee proposed an amendment to Rule 4:1(b)(7), Virginia's procedural rule governing the discovery of ESI in a civil matter,57 and on October 31, 2018, the Virginia Supreme Court amended Rule 4:1(b)(7), which became effective on January 1, 2019.58 Amended Rule 4:1(b)(7) requires the following:
If the party receiving a discovery request anticipates that it will require the production of ESI and that an ESI protocol is needed, then within 21 days of being served with the request, or within 28 days of service of requests served with the Complaint, the receiving party shall propose an ESI protocol which should address:
(A) an initial list of custodians or the person(s) with knowledge of the party's custodians and the location of ESI,
(B) a date range,
(C) production specifications,
(D) search terms, and
(E) the identification and return of inadvertently revealed privileged materials.
If the proposed protocol is not acceptable, the parties shall in good faith attempt to meet within 15 days from service of the protocol on the party requesting the ESI. If, after 15 days from service of the protocol, the parties are unable to agree to limits on the discovery of the ESI, on motion to compel discovery or for a protective order, the court shall, in its discretion, determine appropriate limitations or conditions on the ESI request, if any, including allocation of the reasonable costs thereof.59
Virginia Rule 4:1(b)(7) seeks in the first instance to encourage the parties to target the most relevant ESI and to agree up-front on search terms and the form of production to minimize discovery disputes and delays, and to help contain costs. Although the Virginia Rules do not require an initial discovery conference similar to Federal Rule 26(f), Virginia Rule 4:1 requires the parties to meet and confer to resolve a discovery dispute prior to moving to court.60 Virginia Rule 4:13 permits, but does not require, the court to order a pre-trial conference to discuss discovery issues, including among other things, clawback agreements, ESI preservation issues, and "the possibility of obtaining admissions of fact and admissions regarding documents and information obtained through electronic discovery."61
D. Initial Disclosures of ESI—Federal Rule 26(a). Federal Rule 26 requires that a party make certain initial disclosures to the other party without awaiting a discovery request. Among other disclosures, Federal Rule 26(a) requires initial disclosures of the following documents and/or information:62
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy—or a description by category and location—of all documents, [ESI], and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered. . .
The Virginia Rules have not been similarly amended to require parties to make initial disclosures prior to a discovery request.
E. Scope of Discovery—Federal Rules 26(b) and Virginia Rule 4:1(b). Leading up to the 2015 amendments, there was a growing movement in the legal community that, given the exponential growth in the amount of data being generated, discovery, particularly electronic discovery, should be reasonably limited to what is proportional based on the needs of the case. This notion was supported by studies that showed the inflating costs of e-discovery and a shared belief that "e-discovery ha[d] become more than merely a discovery process; it ha[d]become an alternate method of trying a lawsuit."63 While proportionality was already built into the cost-benefit calculus in prior Rule 26(b)(2), it was seen as not up to the task.64
Because litigants and their counsel were drowning in excessive, irrelevant information, the core...
