Newly promulgated changes to the Rules of Civil Procedure take effect July 1, including provisions on computation of time, subpoenas to nonparties, and electronic discovery procedures.
Is Columbus Day a “legal holiday” for the purposes of computing time under Rule 6 of the Minnesota Rules of Civil Procedure? Can I get a subpoena from a Minnesota court to compel discovery in an action pending in another jurisdiction? If these and other burning questions about the Minnesota Rules of Civil Procedure are keeping you awake at night, take heart! Thanks to the Minnesota Supreme Court Advisory Committee on the Rules of Civil Procedure (hereinafter “the advisory committee”), you will soon be able to rest peacefully.
Perhaps such mundane questions are of no concern to you, oh cavalier (and well-rested) one. But before you scoff and turn the page, consider this next question: To what extent must I produce emails, voicemails, instant message logs, and other electronically stored information in response to a request for production of documents? If you’re still feeling nonchalant, then you’ve either: (a) never used a computer and never had a client who has; or (b) already read the advisory committee’s report and feel satisfied that you are familiar with the newly promulgated amendments pertaining to electronic discovery.
On March 19, 2007, the advisory committee filed a report recommending amendments to the Minnesota Rules of Civil Procedure, and on May 21 the Supreme Court promulgated amendments to the Rules to take effect July 1.1 While many of the amendments constitute only minor clarifications and corrections to the existing rules, the more momentous changes provide for electronic discovery procedures in Minnesota. This article highlights and summarizes some of the more significant amendments.
Computation of Time
In response to recent litigation surrounding the meaning of the term “legal holiday,” the advisory committee recommended amending Rule 6 to unambiguously exclude Columbus Day and other national holidays when computing periods of time under the rules.2 The amendment defines the term “legal holiday” to include any holiday designated in Minn. Stat. §654.44, subd. 5 as a holiday for the state or any statewide branch of government, as well as any day that the U.S. mail system does not operate.
The current version of Rule 6 allows additional time when the last day of a time period is a day on which the weather or other conditions have made the office of the court administrator “inaccessible.” As amended, Rule 6 eliminates the ambiguity involved in determining whether the court administrator’s office is “inaccessible” by allowing additional time only when weather or other conditions “result in the closing of the office of the court administrator where the action is pending.”
Subpoenas to Nonparties
The advisory committee recommended and the Court adopted an amendment to Rule 45.01(d) to add a process for issuing a subpoena to compel attendance at a deposition taken in Minnesota for an action pending in another jurisdiction.
In another change to the rules governing subpoenas, a new Rule 45.01(e) gives more teeth to the existing obligation to provide notice to all parties when issuing a subpoena to a nonparty for pretrial discovery. The requirement applies whether the subpoena commands the nonparty recipient to produce evidence, to permit inspection, or to appear at a trial, hearing, or deposition. The advisory committee’s comment explains that such notice can normally be accomplished by providing a copy of the subpoena to all parties at the time it is served on the nonparty. The rule specifically provides that an attorney or party who issues a subpoena without giving notice to all parties to the action may be subject to sanctions. By including this provision, the Minnesota rule has become more stringent than its federal counterpart, which contains the same notice requirement but bears no mention of any specific consequences for failure to comply.3
Electronic Discovery Procedures
Email has become a primary form of business communication. According to research conducted by San Francisco-based Ferris Research, Inc., business users sent 6 trillion emails in 2006.4 Nearly all companies amass huge quantities of electronic data, including emails, voicemails, instant message logs, internal documents, and other data stored on computer networks and individual hard drives. A wealth of information can also be found in the metadata underlying each of these electronic documents. Wikipedia defines metadata as “data about data,” including, for example, information about when, how, and by whom an electronic document was written or modified.5
Recognizing that litigants have become increasingly eager to access electronically stored information, in 2006 the United States Supreme Court approved amendments to the Federal Rules of Civil Procedure to provide express rules for electronic discovery.6 Those amendments to the Federal Rules are mirrored in the newly promulgated changes to Minnesota Rules 16, 26, 33, 34, 45, and 37. Some of the more noteworthy amendments are highlighted below:
The new Rule 16 permits courts to include provisions regarding electronic discovery in their scheduling orders.
Rule 26 as amended protects a party from having to provide discovery of electronically stored information “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” In response to such an assertion, the party seeking discovery has the option of bringing a motion to compel the adverse party to show that the information is truly not reasonably accessible because of undue burden or cost. Even if such a showing is made, the court can elect to order discovery from the electronic sources anyway, if the requesting party is able to show good cause with regard to why the information is needed.
The revised Rule 33 allows a party to answer an interrogatory by simply producing the relevant electronically stored information.
Rule 34 is amended to specifically allow parties to request electronically stored information to be produced for their inspection, copying, testing, or sampling. Sound recordings, images, and other data stored in any medium may be obtained under the amended rule. Under the new Rule 34.02, a party requesting production of electronically stored information is allowed to specify the form in which the information is to be produced. The responding party can object to the requested form, but the responding party must then state the form it intends to use instead. If the requesting party doesn’t specify a particular form for producing the electronically stored information, then the responding party is required to produce the information in the form in which it is ordinarily maintained or in a form that is reasonably usable.
Rule 45 is amended to allow for the issuance of subpoenas commanding production of electronically stored information for inspection, copying, testing, or sampling. Such a subpoena may specify the form in which electronically stored information is to be produced, but a person responding to the subpoena need not produce the same electronically stored information in more than one form.
Finally, Rule 37.05 provides a “safe harbor” provision identical to the one embodied in Federal Rule 37(f). The new rule will prevent the imposition of sanctions for spoliation of evidence where a loss of electronically stored information arises from the routine, good faith operation of a computer system. Note that the “good-faith” test is not met if a party fails to take appropriate steps to preserve electronic data once a duty to preserve arises. Although the Minnesota state courts have not yet issued a decision defining the precise moment at which such a duty to preserve arises, the U.S. District Court for the District of Minnesota has held that “[t]he obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation.”7
So what do these amendments mean in practical terms? For those attorneys who are already well-acquainted with the federal rules governing e-discovery, the promulgation of parallel rules in Minnesota is likely a welcome and expected development. You folks can go back to enjoying your summer. Come July, the rest of us will need to brush up on the new Minnesota Rules of Civil Procedure, noting that it is now more important than ever to:
Educate clients about the importance of preserving relevant data and the consequences of failing to do so;
Advise clients to educate employees on the issue, especially technology personnel;
Create a “hold notice” to be disseminated to all employees when litigation is anticipated; and
Oversee compliance with the hold notice and monitor the client’s efforts to retain and produce relevant documents.
1 The amendments and accompanying order are available on the Minnesota Supreme Court’s website at www.courts.state.mn.us/rules/civil/amend/civrules2000.rtf.
2 See Commandeur v. Hartry, 724 N.W.2d 508 (Minn. 2006) (holding that Columbus Day is a legal holiday under Rule 6.01 and thus is not included in computing the last day of an appeal period).
3 See Fed. R. Civ. P. 45(b)(1).
4 This statistic is published on the Ferris Research website at http://www.ferris.com/?page_id=1078 and reprinted with the express permission of Ferris Research, which is found at the same site.
5 For a more detailed description of metadata, visit the Wikipedia website at http://en.wikipedia.org/wiki/Metadata.
6 The 2006 amendments providing for electronic discovery under the FRCP are described in greater detail in Wayne S. Moskowitz, “Electronic Discovery Under the New Federal Rules,” 63 Bench & Bar of Minnesota 11 (Dec. 2006), at 14.
7 E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588 (D. Minn. 2005).
MEGAN E. BURKHAMMER is an associate attorney at Quinlivan & Hughes, P.A. in St. Cloud, Minnesota. A 2006 graduate of William Mitchell College of Law, she clerked for Hennepin County judges Margaret Daly and Kathryn Quaintance before entering private practice with the firm in 2007. Ms Burkhammer acknowledges the advice and guidance of Ken Bayliss, a shareholder in Quinlivan& Hughes, P.A. and a member of the advisory committee, in preparing this article.