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Avansic whitepaper published in "The Tulsa Lawyer"
06-07-2010, Avansic - Corporate
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Avansic's whitepaper entitled "Oklahoma'a Civil Procedure Discovery Code Changes to Acknowledging Digital Information" appears in the June 2010 issue of The Tulsa Lawyer, a publication of the Tulsa County Bar Association.
Oklahoma has recently made several modifications to the rules of Civil Procedure that will take effect in November. Among other things, these rules dictate to the treatment and production of evidence during discovery and litigation, which has significantly changed since the technology revolution. The proposed changes specifically acknowledge electronically stored information (otherwise known as ESI) and some of the special issues that arise when presenting such data as evidence. As of a year ago, 17 states had adopted similar rules.
In general, these changes align the state’s rules with the Federal Rules of Civil Procedure. Unless there is another agreement made by the parties to a lawsuit, ESI must be produced if requested. These changes provide the legal procedures and definitions for production of ESI.
Below are statements included in the changes related to ESI:
o The term “electronically stored information” is added alongside the term “documents” for the purposes of discovery and production requests
o The requesting party specifies the form in which ESI is to be produced. In general, it is produced in a “form or forms in which the person ordinarily maintains it.” Also, ESI is only required to be produced in one format.
o If the information is not “reasonably accessible because of undue burden or cost”, the requesting party must show good cause for its production
o If privileged information is inadvertently produced, the opposing party must “return, sequester, or destroy the specified information” – this is typically known as a “clawback” procedure
o The court is allowed to limit discovery if the burden outweighs the benefit or if the discovery can be “obtained from some other source that is more convenient, less burdensome, or less expensive”
o The court may not impose sanctions for failure to produce ESI lost via the “routine, good faith operation of an electronic information system.”
These proposed alterations to Oklahoma’s Rules go into effect in November 2010; these changes, along with the Federal Rules of Civil Procedure from 2006, make it difficult to avoid ESI in legal proceedings. As it was with the adoption of the Federal Rules, it may take some time for legal professionals to put these Rules to use. However, some attorneys have already begun to use ESI in court and the Oklahoma Rules will smooth that process.
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