Important North Carolina Rules Changes Impact E-Discovery and Attorney-Client Privilege

The North Carolina Rules of Civil Procedure governing discovery have been amended to govern the discovery of electronically stored information and to require the preparation of privilege logs in all state court cases filed after October 1, 2011. For the most part, the revisions bring the North Carolina rules into closer accord with the Federal Rules of Procedure. These rule changes will impact all state court litigants and will require increased efforts by parties and their attorneys.

Discovery of Electronically Stored Information Now Expressly Within Scope of State Court Discovery: The state court rules now expressly include “electronically stored information” within the scope of materials discoverable from parties and nonparties alike. Responding parties may object to producing electronically stored information that is not reasonably accessible because of undue burden or cost.

Reasonably Accessible Metadata Must Be Produced: Unlike the federal rules, the state court rules now define “electronically stored information” to include “reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients.”

Discovery Meeting Among Parties or Counsel: The state court rules now provide a detailed procedure for a meet and confer session at the early stages of a case to address a number of issues, including the preservation and discovery of electronically stored information. The new rules do not mandate meet and confer sessions in all state court cases, but provide that any party may request such a meeting or the court may direct the parties to appear for a discovery conference. The parties must prepare a detailed discovery plan for submission to the court.

Privilege Logs Required to Preserve Privilege: The state court rules now require any party withholding information from production to make the claim of privilege or protection as trial-preparation material expressly, and to describe the withheld information in a manner sufficient to enable parties to assess the claims.

Procedure for Asserting Claim of Inadvertent Production of Protected Information: The state court rules now provide that if a party inadvertently produces protected materials in response to a discovery request, the party may assert the claim of privilege by notifying the receiving party, which must promptly return or destroy the information and not use the information until the claim of privilege is resolved.

Sanctions Allowed for Failure to Engage in Proper Discovery of Electronically Stored Information: The rules now expressly allow for sanctions for failure to participate in good faith in framing of a discovery plan covering electronically stored information or for failure to produce electronically stored information as requested.

As a result of these rule changes, state court parties and their attorneys now have the tools and obligations to engage fully in the discovery of relevant electronic information to the extent appropriate for a particular case. If you have questions about your readiness for state court litigation under these new rules, or the impact of these rules on a current or future case, contact Kate Maynard or another member of our litigation department.