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IL Supreme Court Recently Amended Rules for Discovery in Illinois
The Illinois Supreme Court recently amended the rules for discovery in Illinois, effective July 1, 2014, to more specifically address production of documents and files that are stored electronically. Production of documents can now be requested in a specific format, to the extent it is not overly burdensome to do so, including things like metadata (the “hidden” data associated with most electronically stored files) which can reveal such things as when changes were made to the documents, etc. The courts can prevent abuse and overly burdensome production requests under the new rules as well.
Illinois Supreme Court Rule 201(b)(4) now defines “documents” as “any writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations in any medium from which electronically stored information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Rule 201(c)(3) limits the requests by providing “proportionality” provisions that give the courts the authority to tailor discovery orders based on “whether the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” The comments to the rule enumerate the types of discovery that can be protected, including: the remnants of deleted data, the contents of RAM, online access data, metadata, backup data, and data that cannot be retrieved without extraordinary measures. That said, the comments also indicate that “the proportionality analysis may support the discovery of some of the types of ESI (electronically stored information) on this list. Moreover, this list is not static, since technological changes eventually might reduce the cost of producing some of these types of ESI.”
As mentioned above, Rule 214 concerning document production has now been changed to allow for specification of the format in which electronically stored documents are produced. Files requested in their “native format” would purportedly include the metadata or “hidden” information. If production is viewed as too burdensome, parties may object based on the factors in Rule 201(c)(3) and seek a protective order from the court. One advantage these changes makes is if the same documents are stored in 2 or 3 different locations; the parties can then identify the responsive data without producing each and every copy.