On April 9, 2014, the Commercial Division Advisory Counsel requested public comment on a proposed rule to govern discovery of electronically stored information from nonparties. Comments are due on or before May 28, 2014. The proposed rule, Commercial Division Rule 34, provides that “[p]arties and nonparties should adhere to the Commercial Division’s Guidelines for Discovery of Electronically Stored Information (ESI) from Nonparties.” Those guidelines , in turn, set forth procedural rules designed to “improve[e] the efficiency of e-discovery and reduc[e] the potential costs and burdens imposed on non-litigants.”1 The guidelines thus represent the Commercial Division’s most recent effort to craft workable discovery rules in the era of Big Data.
The operative provisions of the guidelines fall into three general categories: (1) obligations of the party seeking ESI discovery from a nonparty; (2) obligations of the nonparty in receipt of a demand for ESI discovery; and (3) mutual obligations to meet and confer regarding discovery disputes. This article analyzes these provisions and discusses the likely impact on litigants and nonparties if proposed Commercial Division Rule 34 is adopted.
