Effective today, the North Carolina Bar Association has modified their civil procedure rules regarding electronically stored information (ESI). Unlike the federal rules and those adopted by most states, it includes a provision stating that ESI includes metadata that provides information related to "the date sent, date received, author, and recipients." Other metadata is not included without party agreement or court order.
Otherwise, the adoption includes the rules of most states (and the federal rules) regarding ESI:
- Adds ESI to the definition of discoverable materials.
- The court can set conditions for discovery and specify cost allocation.
- ESI that is not reasonably accessible because of undue burden or cost may be ordered for good cause.
- Discovery meeting should include a plan for ESI, preservation, and "the media form, format, or procedures by which such information will be produced."
- Failure to provide ESI as a result of routine, good-faith operation of an ESI system is non-sanctionable without exceptional circumstances (referred to in the federal rules as the "safe harbor" provision).
- If electronic information protected by privilege is disclosed, the receiving party must return or destroy the information.
By the most recent count, fourteen states have yet to adopt special ESI rules, including Colorado, Florida, Georgia, Hawaii, Illinois, Massachusetts, Missouri, Nevada, New York, Oregon, Pennsylvania, Rhode Island, Washington, and West Virginia. Some courts within these states have adopted e-discovery rules. For a list of applicable rules for each state, click here.
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