e-Discovery Analysis and
Technology Alert
October 2008
Authors:
Thomas J. Smith
+1.412.355.6758
thomas.smith@klgates.com
Anthony Richard Holtzman
+1.717.231.4570
anthony.holtzman@klgates.com
K&L Gates comprises approximately
1,700 lawyers in 28 offices located in
North America, Europe and Asia, and
represents capital markets participants,
entrepreneurs, growth and middle market
companies, leading FORTUNE 100 and
FTSE 100 global corporations and public
sector entities. For more information,
visit www.klgates.com.
www.klgates.com
E-Discovery and the EHB
In the summer of 2008, the Pennsylvania Environmental Hearing Board (“EHB”),
which is the adjudicatory body that hears administrative appeals from actions taken
by Pennsylvania’s Department of Environmental Protection, unveiled a new type of
pre-hearing order (“EHB Order”), which governs the discovery of electronically stored
information (“ESI”). Now, upon the filing of every appeal in the EHB, an EHB Order is
issued in tandem with the EHB’s traditional pre-hearing scheduling order. The EHB Order
contains a number of provisions that apply in connection with the discovery of ESI.
Like the recently-added provisions of the Federal Rules of Civil Procedure (“Federal
Rules”) that govern the discovery of ESI,1 the provisions of the EHB Order have a
significant effect on which ESI is subject to discovery and how ESI must be preserved,
collected, and produced in litigation. Therefore, it is important for entities and individuals
who litigate before the EHB to become familiar with them. Although they are similar to the
key federal provisions in many respects, they are different in others. And the differences
implicate some issues that EHB litigants should take into consideration.
Comparison of Key Federal Provisions and the EHB Order
A. Similarities
Many of the key federal provisions governing the discovery of ESI have counterparts in
the EHB Order.
“Safe Harbor” Rule: Both the Federal Rules and the EHB Order contain a “safe harbor”
provision stating that, “[a]bsent exceptional circumstances,” a party cannot be judicially
sanctioned “under these rules” for failing “to provide electronically stored information
lost as a result of the routine, good-faith operation of an electronic information system.”
Compare Fed.R.C.P. 37(e) with EHB Order at ¶(d). This language is discussed in the
Committee Note to Federal Rule 37. Among other things, the Note provides that, in order
to operate an electronic information system in good faith, a party must suspend or modify
the system’s automatic deletion features as necessary to prevent the loss of ESI that has
become subject to a preservation obligation due to, for example, pending or reasonably
anticipated litigation. The EHB will likely refer to the Note when construing its own
iteration of the “safe harbor” provision.
Form of ESI Production: The EHB Order tracks the Federal Rules as they relate to the
forms in which ESI is produced. Indeed, like the Federal Rules, the Order specifically
identifies ESI as a category of information that is subject to requests for production and
then provides that a requesting party may specify the form in which each type of requested
ESI is to be produced. Compare Fed.R.C.P. 34(a)(1)(A), (b)(1)(C), and Committee Note
to Federal Rule 34 with EHB Order at ¶¶(e) and (f)(1). Both authorities provide that the
responding party may, in turn, object to a specified form of production. Compare Fed.R.C.P.
34(b)(2)(D) with EHB Order at ¶(f)(2). They explain that, if the responding party does
so, or no form or forms of production were specified, the responding party must state the
form or forms in which he intends to produce the requested ESI. Id. In addition, if no form
or forms were specified, the responding party must produce the requested ESI in a form
1 On April 12, 2006, the U.S. Supreme Court approved a variety of Federal Rules amendments relating to the discovery of
ESI. The amendments became effective on December 1, 2006.
e-Discovery Analysis and Technology Alert
or forms “in which it is ordinarily maintained” or that
are “reasonably usable.” Compare Fed.R.C.P. 34(b)(2)
(E)(ii) with EHB Order at ¶(f)(3). And, in every case,
“[a] party need not produce the same electronically
stored information in more than one form.” Compare
Fed.R.C.P. 34(b)(2)(E)(iii) with EHB Order at ¶(f)(4).
Privileged ESI “Clawback” Provision: The EHB
Order is substantially similar to the Federal Rules with
regard to the inadvertent disclosure of privileged or
protected ESI. Both authorities provide that, if ESI is
produced during discovery and is subject to a claim of
privilege or of protection as trial preparation material,
the producing party may notify the receiving party
of the claim and the basis for it. Compare Fed.R.C.P.
26(b)(5)(B) with EHB Order at ¶(h). Under the Federal
Rules, the receiving party must, in turn, “promptly
return, sequester, or destroy the specified information
and any copies it has; must not use or disclose the
information until the claim is resolved; must take
reasonable steps to retrieve the information if the
party disclosed it before being notified; and may
promptly present the information to the court under
seal for a determination of the claim.” Id. Paragraph
(h) of the EHB Order is to the same effect, although
it clarifies what is implicit in the Federal Rules with
respect to the specified information in the receiving
party’s possession. In this regard, it provides that the
receiving party must sequester the information and
any copies of it he has and either “return or destroy the
information and all copies and not use or disclose the
information until the claim is resolved” or “present the
information to the [EHB] under seal for a determination
of the claim and not otherwise use or disclose the
information until the claim is resolved.” EHB Order
at ¶¶(h)(1)-(2). Thus, paragraph (h) recognizes that, as
a practical matter, the receiving party cannot present
the specified information to the EHB under seal for a
determination of the claim if he has chosen to return it
to the producing party or to destroy it.
Subpoenas for ESI: The EHB Order and the Federal
Rules are similar in their respective approaches to
subpoenas for the production of ESI. They both permit
the issuance of such subpoenas and permit a party
who serves one to inspect, copy, test, or sample the
requested ESI. Compare Fed.R.C.P. 45(a)(1)(A)(iii)
and (a)(1)(D) with EHB Order at ¶(i)(1). Likewise, they
both treat the person who is subject to the subpoena
in largely the same manner as a party who is subject
to a request to produce ESI and, therefore, give him
the same basic rights and duties. Compare Fed.R.C.P.
45(c)(2)(B), (d)(1), and (d)(2) with EHB Order at
¶(i)(2). Similarly, they both require the party who
serves the subpoena to “take reasonable steps to avoid
imposing undue burden or expense on a person subject
to the subpoena” and provide for strict enforcement of
this mandate. Compare Fed.R.C.P. 45(c)(1) with EHB
Order at ¶¶(i)(3) and (4).
Content of ESI Plan: As explained below in Part B,
the EHB Order differs from the Federal Rules in that,
unlike the Rules, it does not – in its plain language –
require the parties to create and file a plan addressing
the discovery of ESI in every case. However, if an
e-discovery plan is created and filed pursuant to the
EHB Order, the Order tends to shape the contents of
the plan in essentially the same manner as the Federal
Rules would. To this end, both authorities guide the
parties by identifying a variety of similar e-discovery
issues that may be addressed in a plan. Compare
Fed.R.C.P. 26(f)(3) and Committee Note to Federal
Rule 26 with EHB Order at ¶(c). Paragraph (c) of the
EHB Order lists the issues as follows:
1. whether discovery of the [electronically stored
information is reasonably likely to be sought in
the proceeding;
2. preservation of the information;
3. the form in which each type of the information
is to be produced;
4. the time within which the information is to
beproduced;
5. the permissible scope of discovery of the
information;[2]
6. the method for asserting or preserving claims
of privilege or of protection of the information
as trial-preparation material after production;
2 The Committee Note to Federal Rule 26 identifies this issue by identifying
its components, explaining that the parties may address “the topics
for [electronic] discovery,” “the time period for which discovery will be
sought,” “the various sources of [ESI] within a party’s control that
should be searched for electronically stored information,” and “whether
the information is reasonably accessible to the party that has it, including
the burden or cost of retrieving and reviewing the information.”
October 2008 | 2
e-Discovery Analysis and Technology Alert
7. the method for asserting or preserving
confidentiality and the proprietary status of
information relating to a party or a person not
a party to the proceeding;
EHB might not be inclined to rely on federal law in
construing the components of the EHB Order that do
not have federal analogues.
8. allocation of the expenses of production; and
There are multiple key differences between the Federal
Rules relating to ESI and the EHB Order, though any
actual impact of those differences will be seen only
after the EHB begins to implement the EHB Order.
9. any other issue relating to the discovery of
the information.
EHB Order at ¶(c).3 Under both the Federal Rules and
the EHB Order, the reviewing tribunal may enter an
order that incorporates all or part of a plan addressing
the discovery of ESI. Compare Fed.R.C.P. 16(c) and
(d) with EHB Order at ¶(c).4
Case law: The federal courts have been construing the
key federal provisions governing the discovery of ESI
since those provisions became effective in December
of 2006. Therefore, a body of caselaw has begun to
develop around those provisions. See, e.g., Columbia
Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D.
Cal. 2007) (“At the heart of Defendants’ Motion for
Review is the following question of first impression:
is the information held in a computer’s random access
memory (RAM) ‘electronically stored information’
under Federal Rule of Civil Procedure 34?”). Going
forward, when the EHB construes language in any
of the various provisions of the EHB Order that have
counterparts in the Federal Rules, it will likely find the
federal cases in which the language was construed to
be helpful as interpretive aids. On the other hand, the
3 The Federal Rules do not specifically identify issues (1), (4), (7), and
(8). However, the Committee Note to Federal Rule 26 provides that “[t]
he particular issues regarding electronically stored information that deserve
attention during the discovery planning stage depend on the specifics of
the given case.”
4 The references in paragraph (c) of the EHB Order to the form in which ESI
is produced, the time frame in which ESI is to be produced, and the method
for asserting or preserving claims of privilege or protection in connection
with ESI that has been produced appear to overlap with rules that are
articulated elsewhere in the EHB Order. This suggests that the EHB may
modify those rules by order in any particular appeal. Also, in addressing
“the permissible scope of discovery of the information” pursuant to
paragraph (c)(5), the parties should be careful not to inadvertently prompt
the EHB to enter an order preventing (or purporting to prevent) them from
discovering ESI that they could have otherwise discovered under applicable
rules of civil procedure. Thus, if the parties include in their e-discovery
plan lists of sources from which the discovery of ESI may be sought,
topical subjects of discoverable ESI, dates of discoverable ESI, or the like,
they may also wish to reserve the right to supplement the lists as discovery
progresses and they gain access to increasing amounts of information.
B. Differences
Good Cause Standard for Discovery of ESI That Is
“Not Reasonably Accessible”: There is a distinction
between the EHB Order and the Federal Rules with
respect to the production of ESI from sources that are
“not reasonably accessible.” Like the Federal Rules,
the Order provides that a party is not, in the first
instance, obligated to produce “electronically stored
information from sources that the party identifies as
not reasonably accessible because of undue burden
or cost.” Compare Fed.R.C.P. 26(b)(2)(B) with EHB
Order at (g)(1). Both authorities likewise provide that,
if the requesting party moves to compel discovery
of ESI from those sources or for a protective order
relating to the discovery of ESI from those sources,
the responding party must show that the sources are
not reasonably accessible because of undue burden or
cost. Compare Fed.R.C.P. 26(b)(2)(B) with EHB Order
at ¶(g)(2). And they both state that, if such a showing is
made, the reviewing tribunal may nevertheless “order
discovery” from the sources at issue if the requesting
party shows what the Federal Rules call “good cause”
and, in ordering the discovery, may set “conditions
for the discovery.” Compare Fed.R.C.P. 26(b)(2)(B)
with EHB Order at ¶(g)(3). However, the EHB Order
differs from the Federal Rules in delineating the factors
that are relevant to determining whether there is “good
cause” for the discovery.
In this regard, paragraph (g)(3) of the Order provides
that the requesting party must show that “the likely
benefit of the proposed discovery outweighs the likely
burden or expense, taking into account the specificity
of the discovery request, the amount in controversy,
the resources of the parties, the importance of the
issues, and the importance of the requested discovery
in resolving the issues.” The same cost-benefit factors
are mentioned in, collectively, Federal Rule 26(b)
(2)(B) (by way of reference to Federal Rule 26(b)
(2)(C)) and the Committee Note to Federal Rule
26. But Federal Rule 26(b)(2)(B) and the Note also
contemplate possible consideration of: (i) whether
October 2008 | 3
e-Discovery Analysis and Technology Alert
“the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other
source that is more convenient, less burdensome,
or less expensive,” (ii) whether “the party seeking
discovery has had ample opportunity to obtain the
information by discovery in the action,” (iii) “the needs
of the case,” (iv) “the quantity of information available
from other and more easily accessed sources,” (v) “the
failure to produce relevant information that seems
likely to have existed but is no longer available on
more easily accessed sources,” (vi) “the likelihood of
finding relevant, responsive information that cannot be
obtained from other, more easily accessed sources,”
(vii) the “requesting party’s willingness to share or
bear the access costs,” and (viii) “the producing party’s
burdens in reviewing the information for relevance
and privilege.”5 Thus, when it comes to showing good
cause for the production of ESI from non-reasonably
accessible sources, the Federal Rules embrace more
factors than the EHB Order and have a greater focus
on whether and to what extent the information can be
obtained from other, more easily accessible sources.
It remains to be seen whether, as a practical matter,
this will make it easier for a party to show good cause
before the EHB than before a federal court.
Requirement for ESI Plan: The Federal Rules
require the parties – in every case – to create and
file a discovery plan that addresses, among other
things, “any issues about disclosure or discovery of
5
Under both the Federal Rules and the EHB Order, a reviewing tribunal
must limit the frequency or extent of pending discovery of ESI, even from
a source that is reasonably accessible, if it determines that factors
(i) and (ii) are satisfied and that the likely burden or expense of the
proposed discovery outweighs the likely benefit, taking into account the
amount in controversy, the resources of the parties, the importance of the
issues at stake, and the importance of the requested discovery in resolving
the issues. Compare Fed.R.C.P. 26(b)(2)(C) with EHB Order at ¶(g)(4).
electronically stored information, including the form
or forms in which it should be produced.” Fed.R.C.P.
26(f)(3)(C). By contrast, the EHB Order requires the
parties to create and file a plan for the discovery of ESI
only if they believe that “discovery of electronically
stored information is reasonably likely to be sought
in the proceeding.” EHB Order at ¶¶(a) and (b). This
limitation suggests that the EHB, despite its adoption
of the EHB Order, remains somewhat skeptical of the
importance of e-discovery and, as a result, is willing to
allow the parties to, by agreement, forego the creation
of an e-discovery plan.
Conclusion
By way of the EHB Order, the EHB is making an effort
to streamline the discovery of electronically stored
information in the appeals it decides. That effort is
predicated, in large part, upon the key provisions of the
Federal Rules that govern the discovery of ESI. This
is both wise and unsurprising, given that the federal
provisions were adopted only after years of careful
study and debate. That said, the EHB Order diverges
from the relevant federal provisions in certain respects
and, in doing so, raises some potentially difficult issues.
Therefore, those who litigate before the EHB should
consult with their counsel to ensure that they comply
with the EHB Order and that, in complying, they
protect their interests to the greatest extent possible.
This publication is for informational purposes only
and does not contain or convey legal advice. The
information herein should not be used or relied upon in
regard to any particular facts or circumstances without
first consulting with a lawyer.
K&L Gates comprises multiple affiliated partnerships: a limited liability partnership with the full name K&L Gates LLP qualified in Delaware and
maintaining offices throughout the U.S., in Berlin, in Beijing (K&L Gates LLP Beijing Representative Office), and in Shanghai (K&L Gates LLP Shanghai
Representative Office); a limited liability partnership (also named K&L Gates LLP) incorporated in England and maintaining our London and Paris
offices; a Taiwan general partnership (K&L Gates) which practices from our Taipei office; and a Hong Kong general partnership (K&L Gates,
Solicitors) which practices from our Hong Kong office. K&L Gates maintains appropriate registrations in the jurisdictions in which its offices are
located. A list of the partners in each entity is available for inspection at any K&L Gates office.
This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or
relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
Data Protection Act 1998—We may contact you from time to time with information on K&L Gates LLP seminars and with our regular newsletters,
which may be of interest to you. We will not provide your details to any third parties. Please e-mail london@klgates.com if you would prefer not to
receive this information.
©1996-2008 K&L Gates LLP. All Rights Reserved.
October 2008 | 4