Rule 26.General provisions governing discovery.

Subdivision (b)(2): Before Rule 26 was amended by the Supreme Court in 1970, permitting pretrial discovery of insurance coverage under Rule 26(b)(2), there was a wide diversity of opinion among both the Federal District Courts and the State Courts on the subject. Wright & Miller, Federal Practice and Procedure, Civil, § 2010 (1970). The pros and cons of the argument are set forth with clarity in Davis’ article, Pretrial Discovery of Insurance Coverage, 16 Wayne L.Rev. 1047, 1053-55, as follows: “Courts allowing discovery of insurance coverage generally do so for one or more of the following reasons: (a) A defendant’s insurance coverage is relevant to the subject matter of the total lawsuit, (b) the procedural rules are construed to secure the just, speedy, and inexpensive determination of every action; (c) the broad policy of modern day discovery is open and frank disclosure; (d) a defendant’s insurance company is intimately connected with the lawsuit and more than just an interested party; (e) most states require automobile liability insurance and it is an asset existing only for such eventuality as the litigation in which defendant finds himself; and, most importantly, (f) fair and just settlements will be fostered, protracted litigation will be avoided, calendar congestion will be alleviated, and secrets, mysteries and surprises will be eliminated. Occasionally courts allow discovery for other reasons. Among them are: Uniformity of decision will discourage forum shopping; the plaintiff has a third-party beneficiary interest in the policy giving him a ‘discoverable interest,’ or because the provisions of the insurance policy may themselves be relevant to proof of liability. “On the other hand, grounds relied upon by courts denying discovery are: (a) Insurance coverage is not relevant in the pretrial stage of litigation; (b) a liability insurance policy is an asset of the defendant, and assets are not discoverable until and if post-judgment proceedings are reached; (c) the rules do not specifically provide for insurance coverage discovery; (d) discovery of high policy limits could render settlement more difficult just as easily as the converse could facilitate settlement; and (c) the fact of insurance is not admissible at trial and its discovery cannot reasonably lead to the discovery of admissible evidence. Some of the less persuasive reasons advanced for refusing discovery are: It is not for the trial courts but for the supreme court by rule or the legislature by statute to declare insurance policy limits discoverable, allowing discovery would invade the defendant’s or insurer’s right to privacy; and compromise settlement is not the aim of the discovery rules.” After thorough consideration, the committee has not recommended that the limits of insurance be subject to discovery.

Subdivision (b)(3): In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), a landmark decision, the Court was confronted with the applicability of the venerated attorney-client privilege to all of the information assembled by the attorney while preparing his case. While refusing to apply the attorney-client privilege to a lawyer’s entire files and mental impressions, the court, on the other hand, was unwilling to make discovery proper in all instances. Defining the delicate balance between the equally undesirable extremes of full disclosure and no disclosure has provoked great uncertainty. This subdivision seeks to lay the ground rules for striking the balance.

Federal Rule 26(b)(3) has been described as an accurate codification of Hickman, supra, and later cases in the lower courts. Wright & Miller, Federal Practice & Procedure, Civil, § 2023 (1970). This subparagraph: (1) defines the class of materials that are given protection as work product, (2) sets out the showing (substantial need and undue hardship) required to obtain discovery of work product material, (3) gives absolute protection to an attorney’s mental impressions, legal theories, and the like, (4) allows a party to obtain a copy of his own statement without a special showing, and (5) creates machinery by which a person not a party to the litigation who has given a statement concerning the action, may obtain a copy of his own statement. The rule of Hickman, supra, is no stranger to Alabama, having been recognized and applied in Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (1967).

Subdivision (b)(4): Discovery of experts has, at various times, been argued to be barred by privilege, work product or the fundamental unfairness in a silver platter presentation of often costly information. On the other hand, the decisive nature of expert testimony in many actions and the concomitant need for adequate pretrial preparation with respect to expert testimony has lent support to the discoverability of experts’ information. This provision permits discovery and, as in Rule 26(b)(3), seeks to strike a balance between full discovery and no discovery at all. It is more easily comprehensible if the following categories of experts are noted:

(1) Experts a party expects to use at trial. Opposing parties are entitled, without cost, to secure answers to interrogatories containing the identity of these experts and the substance of the facts and opinions upon which they are expected to testify. Further discovery can be had upon motion, the granting of which would depend upon a showing of the inadequacy of the answers to interrogatories. If further discovery is permitted, fees and expenses can be demanded of the party seeking discovery.

(2) Experts retained specially employed or assigned in anticipation of litigation and preparation for trial but not expected to be used at trial. First note that this does not cover an expert who is an actor or viewer who was therefore not preparing for trial when his expertise came to bear upon the transaction or occurrence made the basis of the action. The facts and opinions of actors or viewers are discoverable just as any other witness under Rule 26(b)(2). The facts and opinions of the expert not to be used at trial, although engaged in preparation, can only be had upon a showing of exceptional circumstances. By way of example, exceptional circumstance might exist when such an expert has conducted a destructive test on evidence in the action. See Colden v. R.J. Schofield Motors, 14 F.R.D. 521 (N.D.Ohio 1952).

(3) Experts informally consulted in preparation for trial but not retained. No discovery of the identity or views of these experts can be had. Presumably, by way of example, counsel’s unsuccessful efforts to retain a nationally known consumer protection advocate would not be subject to discovery.

(4) Experts whose information was not obtained in preparation for trial. As noted in (2) above, these actors or viewers are subject to discovery as with an ordinary witness. For example, consider the status of a defendant architect in a malpractice action. This rule differs in that it broadens F.R. 26(b)(4)(B) to include general employees who are used in anticipation of litigation. Under F.R. 26(b)(4), a general employee, not an actor or viewer and called into the case after litigation commences arguably qualifies neither as an ordinary witness nor as any previously noted kind of expert witness and could arguably be exempt from discovery.

Finally, discovery on motion after inadequate interrogatory answers will be subject to fees being paid for the time involved in responding to additional discovery, and may be subject to payment of a part of the experts total fees. Discovery on motion in the remaining instances will be subject to both categories of fees referred to above.

Subdivision (c): Protective Orders. Formerly Rule 30(b), F.R.C.P., this provision is applicable to all forms of discovery and reaches objections as to time as well as place and further, provides a remedy against undue burden or expense. See Wright & Miller, Federal Practice and Procedure, Civil, § 2035 (1970). Also, this section authorizes the Judge in which the action is pending or where the discovery is taking place to grant relief.

Subdivision (d): Sequence and Timing of Discovery. This section permits simultaneous discovery by all parties unless the Court expressly orders one party to refrain from discovery until conclusion of discovery by another party. This prevents the imposition of priorities save only in most unusual circumstances.

Subdivision (e): Supplementation of Responses. Rule 26(e) is also new to both Alabama and federal practice. The rule does not impose the impracticable burden of a continuing check by the attorney upon the accuracy of all responses previously given by his client. It requires supplementation only in two situations where after-acquired information is of great importance and is particularly likely to come to the attorney’s attention. These situations arise when new information about witnesses or new information which to the party’s knowledge makes a prior answer incorrect is acquired. Paragraph (3) also imposes a duty to supplement if so ordered or agreed or upon a new discovery request. Although there is no express sanction provision for Rule 26(e), the federal Advisory Committee’s Note states that the “Duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the Court may deem appropriate.” 48 F.R.D. 487, 508.

Committee Comments to August 1, 1992, Amendment to Rule 26(b)(2)

The Alabama legislature amended Alabama Code 1975, § 32-7-23, effective January 1, 1985, to create underinsured motorist coverage. That statutory amendment has generated much litigation and many appellate decisions. See R. Davenport, Underinsured Motorist Coverage—Where Did It Come From Where Is It Going, 49 Ala.Law. 284 (1988), and Underinsured Motorist Coverage—An Update, 50 Ala.Law. 307 (1989). In particular, Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988), provides several procedural options to the underinsured carrier and the insured (the plaintiff in the tort action). Without knowing the defendant’s policy limits, the plaintiff cannot make intelligent decisions as to whether or when to give notice or to join the carrier of underinsured motorist coverage, and the carrier cannot know whether to participate or to withdraw from the litigation. The original committee comments explain that the limits of liability insurance were shielded from discovery in order to better facilitate settlement. However, in the context of underinsured motorist coverage, the original rule actually made settlement much more difficult. If the defendant disputes that underinsured motorist coverage is likely to come into play under the facts and the injuries alleged, the trial court should liberally construe any uncertainties in favor of disclosure if the goal of facilitation of settlement is to be attained.

Committee Comments to August 1, 1992, Amendment to Rule 26(c)

The portion of the first paragraph requiring a statement of the attorney for the moving party was added so as to require all attorneys to confer with opposing counsel before moving for a protective order. The committee hopes that most discovery disputes will be resolved between counsel without resort to provisions regarding protective orders.

Committee Comments to October 1, 1995, Amendment to Rule 26

Subdivision (a). This amendment conforms this subdivision to F.R.Civ.P. 26(a) as it existed before the 1993 amendments to F.R.Civ.P. 26. It drops the invitation to abusive discovery contained in the last sentence of the former rule, which referred to the unlimited use of various discovery methods.

Subdivision (b). This amendment conforms this subdivision to F.R.Civ.P. 26(b) as it existed before the 1993 amendments to F.R.Civ.P. 26. The revised rule authorizes restrictions on the frequency and extent of use of discovery methods. It also makes insurance agreements generally discoverable.

Subdivision (f). This subdivision is substantially different from the present version of F.R.Civ.P. 26(f) or from F.R.Civ.P. 26(f) as it existed before the 1993 amendments to F.R.Civ.P. 26.

Committee Comments to Adoption of Rule 26(b)(5) Effective August 1, 2004

This amendment adds subdivision (b)(5) by adopting similar language from existing Rule 45(d)(2). Rule 26(b)(5), Fed.R.Civ.P., effective December 1, 1993, covers the same subject matter, but with slightly different wording.

A party must provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection. Although the person from whom discovery is sought decides whether to claim a privilege or protection, the court ultimately decides whether, if this claim is challenged, the privilege or protection applies. Providing information pertinent to the applicability of the privilege or protection should reduce the need for in camera examination of documents.

The Rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work-product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items, etc., can be described by categories. It is not intended that an exhaustive “privilege log” or a similarly detailed document be prepared in every case. The parties and the court should take into account the practical considerations listed in Rule 26(b)(1)(iii).

Committee Comments to Amendment to Rule 26 Effective February 1, 2010

1. Introduction

The amendment to Rule 26 is a part of the comprehensive revisions to Rules 16, 26, 33(c), 34, 37, and 45 to accommodate the discovery of electronically stored information ("ESI"). The 2006 amendments to the Federal Rules of Civil Procedure ("FRCP") and the FRCP Advisory Committee Notes served as the Committee's benchmark, although many sources were consulted, including caselaw and the Uniform Rules Relating to Discovery of Electronically Stored Information published by the National Conference of Commissioners on Uniform State Laws. These Committee Comments quote many of the Federal Advisory Committee Notes to the 2006 amendments to the FRCP at length, but there are additional Federal Advisory Committee Notes, not quoted here, that should also be consulted.

Rule 26(b)(2) now provides a two-tiered procedure for the discovery of ESI; subdivision 26(b)(6)(B) provides a procedure to be followed in the event that a party asserts that privileged or protected documents were inadvertently produced; and subdivision 26(f) invites parties to agree, and permits the court to order the parties to meet and confer, regarding ESI issues early in the discovery process if such discovery will be sought.

2. Rule 26(b)(2): Two-Tiered Discovery of ESI

Rule 26(b)(2) provides a two-tiered procedure for discovery of ESI. First, the producing party produces information from reasonably accessible sources, which may include a challenge by the requesting party and a ruling by the court regarding what sources are reasonably accessible. The second tier is invoked if the requesting party seeks discovery of information from sources that are not reasonably accessible, which would include a ruling by the court as to whether the requesting party has shown good cause for compelling the discovery.

Rule 26(b)(2) is not changed regarding production of ESI that is readily accessible. Such discovery is subject to the existing provisions of the Alabama Rules of Civil Procedure. However, ESI that is not reasonably accessible need not be produced initially. Rather, the responding party must identify the sources of ESI that are not reasonably accessible. The Alabama amendment varies slightly from the FRCP to make clear that the requesting party is the one to whom these sources of ESI should be identified.

ESI is not reasonably accessible if its production from the identified source would be unduly burdensome and costly. The responding party must act in good faith under Rule 11 in so designating a source of ESI.

If the parties are unable to agree after meeting and conferring that information from a source designated as "not reasonably accessible" is in fact not reasonably accessible, a motion to compel or a motion for a protective order may be filed. In either event the responding party has the burden to show that producing data from such source would be unduly burdensome and costly. If the responding party fails to carry this burden, the data should be produced under and subject to the existing rules applicable to all discovery.

If the court determines that the information is not reasonably accessible, the information need not be produced unless the requesting party shows good cause for compelling the discovery, considering the factors set forth in subsection (b)(2)(B) of this rule. Moreover, if the court finds good cause, it may condition the discovery as appropriate (e.g., impose limits on the volume of information to be searched for and/or the sources of information to be searched, as well as the payment by the requesting party of all or part of the costs incurred in obtaining the information).

Adding subsection (b)(2)(A) to Rule 26 required changing the lettering/numbering system in the rest of Rule 26(b).

The FRCP Advisory Committee Notes to Rule 26 provide a succinct and practical aid in understanding the need for, and the interpretation of, the new provisions of Alabama Rule 26(b)(2)(A), and they are, accordingly, adopted by the committee as follows:

"The amendment to Rule 26(b)(2) is designed to address issues raised by difficulties in locating, retrieving, and providing discovery of some electronically stored information. Electronic storage systems often make it easier to locate and retrieve information. These advantages are properly taken into account in determining the reasonable scope of discovery in a particular case. But some sources of electronically stored information can be accessed only with substantial burden and cost. In a particular case, these burdens and costs may make the information on such sources not reasonably accessible.

"It is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information. Information systems are designed to provide ready access to information used in regular ongoing activities. They also may be designed so as to provide ready access to information that is not regularly used. But a system may retain information on sources that are accessible only by incurring substantial burdens or costs. Subparagraph (B) [Ala. R. Civ. P. 26(b)(2)(A)] is added to regulate discovery from such sources.

"Under this rule, a responding party should produce electronically stored information that is relevant, not privileged, and reasonably accessible, subject to the (b)(2)(C) [Ala. R. Civ. P. 26(b)(2)(B)] limitations that apply to all discovery. The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.

"A party's identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence. Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery.

"The volume of – and the ability to search – much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties’ discovery needs. In many circumstances the requesting party should obtain and evaluate the information from such sources before insisting that the responding party search and produce information contained on sources that are not reasonably accessible. If the requesting party continues to seek discovery of information from sources identified as not reasonably accessible, the parties should discuss the burdens and costs of accessing and retrieving the information, the needs that may establish good cause for requiring all or part of the requested discovery even if the information sought is not reasonably accessible, and conditions on obtaining and producing the information that may be appropriate.

"If the parties cannot agree whether, or on what terms, sources identified as not reasonably accessible should be searched and discoverable information produced, the issue may be raised either by a motion to compel discovery or by a motion for a protective order. The parties must confer before bringing either motion. If the parties do not resolve the issue and the court must decide, the responding party must show that the identified sources of information are not reasonably accessible because of undue burden or cost. The requesting party may need discovery to test this assertion. Such discovery might take the form of requiring the responding party to conduct a sampling of information contained on the sources identified as not reasonably accessible; allowing some form of inspection of such sources; or taking depositions of witnesses knowledgeable about the responding party’s information systems.

"Once it is shown that a source of electronically stored information is not reasonably accessible, the requesting party may still obtain discovery by showing good cause considering the limitations of Rule 26(b)(2)(C) [Ala. R. Civ. P. 26(b)(2)(B)] that balance the costs and potential benefits of discovery. The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. Appropriate considerations may include: (1) the specificity of the discovery request; (2) the quantity of information available from other more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources. "The responding party has the burden as to one aspect of the inquiry – whether the identified sources are not reasonably accessible in light of the burdens and costs required to search for, retrieve, and produce whatever responsive information may be found. The requesting party has the burden of showing that its need for the discovery outweighs the burdens and costs of locating, retrieving, and producing the information. In some cases, the court will be able to determine whether the identified sources are not reasonably accessible and whether the requesting party has shown good cause for some or all of the discovery consistent with the limitations of Rule 26(b)(2)(C) [Ala. R. Civ. P. 26(b)(2)(B)], through a single proceeding or presentation. The good-cause determination, however, may be complicated because the court and parties may know little about what information the sources identified as not reasonably accessible might contain, whether it is relevant, or how valuable it may be to the litigation. In such cases, the parties may need some focused discovery, which may include sampling of the sources, to learn more about what burdens and costs are involved in accessing the information, what the information consists of, and how valuable it is for the litigation in light of information that can be obtained by exhausting other opportunities for discovery.

"The good-cause inquiry and consideration of the Rule 26(b)(2)(C) [Ala. R. Civ. P. 26(b)(2)(B)] limitations are coupled with the authority to set conditions for discovery. The conditions may take the form of limits on the amount, type, or sources of information required to be accessed and produced. The conditions may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible. A requesting party's willingness to share or bear the access costs may be weighed by the court in determining whether there is good cause. But the producing party's burdens in reviewing the information for relevance and privilege may weigh against permitting the requested discovery.

"The limitations of Rule 26(b)(2)(C) [Ala. R. Civ. P. 26(b)(2)(B)] continue to apply to all discovery of electronically stored information, including that stored on reasonably accessible electronic sources."

3. Rule 26(b)(6)(B): Inadvertent Production and Waiver

Subdivision (b)(6)(B) has been added. Nonelectronic discovery practice sometimes includes the production of tens of thousands of documents, which presents a substantial risk that privileged or protected documents may be inadvertently produced even after a reasonable and time-consuming preproduction review, which, in turn, adds to the cost and delay of discovery. Discovery of ESI can present even more of a challenge. New subdivision (b)(6)(B), therefore, provides a procedure to assert a claim of attorney-client privilege or work-product protection after production. The change is applicable to both non-ESI and ESI data, but, of course, is procedural and does not address substantive waiver law.

Here again, the FRCP Advisory Committee Notes are instructive and are adopted with two additional comments. First, the notice provided by the party claiming the privilege or protection should include the factual and legal basis for the claim. Second, the parties are reminded that they are subject to Rule 11 and its sanctions if a claim of privilege or protection is asserted without reasonable belief that there is good ground to assert the claim. With these additions, the FRCP Advisory Committee Notes are adopted, as follows:

"Rule 26(b)(5)(B) [Ala. R. Civ. P. 26(b)(6)(B)] does not address whether the privilege or protection that is asserted after production was waived by the production .... Rule 26(b)(5)(B) [Ala. R. Civ. P. 26(b)(6)(B)] provides a procedure for presenting and addressing these issues. Rule 26(b)(5)(B) [Ala. R. Civ. P. 26(b)(6)(B)] works in tandem with Rule 26(f), which is amended to direct [in Ala. R. Civ. P. 26(b)(6)(B), this word has been changed to 'invite'] the parties to discuss privilege issues in preparing their discovery plan, and which, with amended Rule 16(b), allows the parties to ask the court to include in an order any agreements the parties reach regarding issues of privilege or trial-preparation material protection. Agreements reached under Rule 26(f)(4) [Ala. R. Civ. P. 26(f)] and orders including such agreements entered under Rule 16(b)(6) may be considered when a court determines whether a waiver has occurred. Such agreements and orders ordinarily control if they adopt procedures different from those in Rule 26(b)(5)(B) [Ala. R. Civ. P. 26(b)(6)(B)].

"A party asserting a claim of privilege or protection after production must give notice to the receiving party. That notice should be in writing unless the circumstances preclude it. Such circumstances could include the assertion of the claim during a deposition. The notice should be as specific as possible in identifying the information and stating the basis for the claim. Because the receiving party must decide whether to challenge the claim and may sequester the information and submit it to the court for a ruling on whether the claimed privilege or protection applies and whether it has been waived, the notice should be sufficiently detailed so as to enable the receiving party and the court to understand the basis for the claim and to determine whether waiver has occurred. Courts will continue to examine whether a claim of privilege or protection was made at a reasonable time when delay is part of the waiver determination under the governing law.

"After receiving notice, each party that received the information must promptly return, sequester, or destroy the information and any copies it has. The option of sequestering or destroying the information is included in part because the receiving party may have incorporated the information in protected trial-preparation materials. No receiving party may use or disclose the information pending resolution of the privilege claim. The receiving party may present to the court the questions whether the information is privileged or protected as trial- preparation material, and whether the privilege or protection has been waived. If it does so, it must provide the court with the grounds for the privilege or protection specified in the producing party’s notice, and serve all parties. In presenting the question, the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility.

"If a party disclosed the information to nonparties before receiving notice of a claim of privilege or protection as trialpreparation material, it must take reasonable steps to retrieve the information and to return it, sequester it until the claim is resolved, or destroy it.

"Whether the information is returned or not, the producing party must preserve the information pending the court's ruling on whether the claim of privilege or of protection is properly asserted and whether it was waived. As with claims made under Rule 26(b)(5)(A) [Ala. R. Civ. P. 26(b)(6)(A)], there may be no ruling if the other parties do not contest the claim."

4. 26(f): Discovery Conference

Unlike its federal counterpart, Ala. R. Civ. P. 26(f) does not mandate a meeting of the parties to confer and consider ESI or other issues, and the amendment to subdivision (f) does not alter current Alabama practice. As noted in the Committee Comments to Rule 26(b)(6), the court and parties should address ESI discovery issues at a discovery conference or otherwise only in those cases in which such an effort would be productive and necessary. Rule 26(f) does, however, advise that the court or any party may raise any issue regarding discovery or preservation of ESI if such discovery will be sought. The new provision lists some common issues in discovery of ESI, which should be dealt with at or before the commencement of discovery. For example the parties may need to discuss: the computer systems utilized and their capabilities in order to develop a discovery plan tailored for the specific ESI issues of the particular case; the categories of information sought and the period for which such information is sought; the various sources of the information sought and whether the information is reasonably accessible from such sources; and the form or forms in which the ESI is stored and will be produced.

Any issues regarding preservation of discoverable information should be discussed with a view toward striking a balance between preserving relevant evidence and the parties’ needs to continue the routine operation of their computer systems as a part of their ongoing business activities. However, the suggestion that the parties should address preservation issues does not, as the FRCP Advisory Committee Note to Rule 26(f) indicates, "imply that courts should routinely enter preservation orders. A preservation order entered over objection should be narrowly tailored. Ex parte preservation orders should issue only in exceptional circumstances."

As noted in the Committee Comments regarding Rule 16(b)(6), agreements regarding procedures for asserting claims of privilege or protection after discovery has been produced and for entering nonwaiver agreements may reduce delays and lessen the cost of discovery. Such agreements are particularly appropriate in connection with the production of ESI. As noted by the FRCP Advisory Committee Notes to Rule 26(f):

"These problems often become more acute when discovery of electronically stored information is sought. The volume of such data, and the informality that attends use of e-mail and some other types of electronically stored information, may make privilege determinations more difficult, and privilege review correspondingly more expensive and time consuming. Other aspects of electronically stored information pose particular difficulties for privilege review. For example, production may be sought of information automatically included in electronic files but not apparent to the creator or to readers. Computer programs may retain draft language, editorial comments, and other deleted matter (sometimes referred to as 'embedded data' or 'embedded edits') in an electronic file but not make them apparent to the reader. Information describing the history, tracking, or management of an electronic file (sometimes called 'metadata') is usually not apparent to the reader viewing a hard copy or a screen image. Whether this information should be produced may be among the topics discussed in the Rule 26(f) conference. If it is, it may need to be reviewed to ensure that no privileged information is included, further complicating the task of privilege review.

"Parties may attempt to minimize these costs and delays by agreeing to protocols that minimize the risk of waiver. They may agree that the responding party will provide certain requested materials for initial examination without waiving any privilege or protection -– sometimes known as 'quick peek.' The requesting party then designates the documents it wishes to have actually produced. This designation is the Rule 34 request. The responding party then responds in the usual course, screening only those documents actually requested for formal production and asserting privilege claims as provided in Rule 26(b)(5)(A) [Ala. R. Civ. P. 26(b)(6)(A)]. On other occasions, parties enter agreements – sometimes called 'clawback agreements' – that production without intent to waive privilege or protection should not be a waiver so long as the responding party identifies the documents mistakenly produced, and that the documents should be returned under those circumstances. Other voluntary arrangements may be appropriate depending on the circumstances of each litigation. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial–preparation material.

"Although these agreements may not be appropriate for all cases, in certain cases they can facilitate prompt and economical discovery by reducing delay before the discovering party obtains access to documents, and by reducing the cost and burden of review by the producing party. A case-management or other order including such agreements may further facilitate the discovery process."

In reaching any agreement regarding the production of electronic information, and in particular metadata, the parties should be cognizant of an ethics opinion (Alabama State Bar Office of General Counsel Opinion Number: 2007-02), which concludes that: (i) the producing party must use reasonable care to prevent the disclosure of metadata that contains information protected by the attorney- client privilege or the work product doctrine and (ii) to the extent proscribed by the opinion, it is unethical for the receiving party to "mine" for metadata.

Committee Comments to Amendment to Rule 26(b)(1) and Rule 26(b)(2) Effective December 21, 2018

Rule 26 is amended to incorporate proportionality into the definition of the scope of discovery in Rule 26(b)(1), paralleling most of the changes made on December 1, 2015, to Rule 26, Federal Rules of Civil Procedure. Previously, various factors bearing on proportionality were part of Rule 26(b)(2)(B), which allows the court to limit discovery. The amendment moves those factors, slightly rearranges and modifies them, and adds two factors. They are now identical to those in Rule 26, Federal Rules of Civil Procedure, and the Committee expects that caselaw interpreting those factors in the federal rule will be helpful in construing our rule.

Moving the factors relating to proportionality should highlight the need to size discovery to the needs of a particular case. All parties should share the responsibility to honor these limits on the scope of discovery. Notably, the change does not place on the party seeking discovery the burden of addressing all proportionality considerations. This is left to the discretion of the trial court. The change is not intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that the discovery sought is not proportional to the needs of the case. The parties have a collective responsibility to provide the court with all appropriate information regarding proportionality, and the court must determine whether the discovery sought is proportional to the needs of the case.

The parties may begin discovery without a full appreciation of the factors that bear on proportionality. A party requesting discovery, for example, may have little information about the burden or expense of responding to particular discovery requests. A party claiming undue burden or expense ordinarily has far better information – perhaps the only information – with respect to that determination. A party requested to provide discovery may have little information about the importance of the discovery in resolving the issues as understood by the requesting party. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the information sought bears on the issues as that party understands them. The court's responsibility, using all the information provided by the parties, is to consider these and all the other proportionality factors in reaching a case-specific determination of the appropriate scope of discovery.

The direction to consider the parties' relative access to relevant information adds new text to Rule 26, providing increased focus on considerations previously implicit in former Rule 26(b)(2)(B)(iii). Some cases involve what often is called "information asymmetry." One party – often an individual plaintiff – may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.

Likewise, the directive to consider "the importance of the discovery in resolving the issues" is new in the text but was previously implicit in the language in former Rule 26(b)(2)(B)(iii) regarding "the needs of the case."

The Committee believes that discovery will normally be effectively managed by the parties and that they will be able to resolve proportionality issues with little dispute in the vast number of actions. However, the proportionality factors added to Rule 26(b)(1) are particularly important for those actions that involve more complexity, including, without limitation, actions involving commercial disputes, class actions, multiparty actions, product-liability actions, and actions involving electronic discovery. In such actions, greater judicial involvement in the discovery process may be necessary and discovery may not operate on a self-regulating basis. The information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression. The amendments reflect the need for continuing and close judicial involvement in cases that do not yield readily to the ideal of effective party management and provides the parties and the court with a standard to use.

The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as more reliable means of searching electronically stored information become available.

Furthermore, Rule 26(b)(1) has been amended to delete the following language regarding the scope of discovery: "including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the text of Rule 26(b)(1) with those examples. The discovery identified in those examples should still be permitted under the amended rule when relevant and proportional to the needs of the case. Although Rule 26(b)(1) has been amended to reflect the transfer of the considerations that bear on proportionality from Rule 26(b)(2), other portions of Rule 26(b)(2) entitled "Limitations" remain in place regarding electronically stored information (subsection (A)) and the frequency and extent of the use of the various discovery methods (subsection (B)). Among the retained limitations is the admonition that a party's discovery may be limited if the party seeking discovery "has had ample opportunity by discovery in the action to obtain the information sought." This limitation is primarily intended to apply to situations in which the costs or burdens of discovery could have been reduced if the discovery had been sought earlier in the litigation (for instance, seeking to depose the same (or a similar) witness to ask new questions absent good cause or seeking to use additional search terms for electronically stored information that has already been searched, or to identify additional custodians of electronically stored information that has already been searched, absent good cause).

Committee Comments to Amendment to Rule 26(c) Effective December 21, 2018

Consistent with the changes to the Federal Rules of Civil Procedure in 2015, which included the simultaneous changes in federal Rule 26(b)(l), the federal corollary to Rule 26(b)(1) and (2), Alabama Rules of Civil Procedure, and federal Rule 26(c), Rule 26(b)(1) and (2) and Rule 26(c), Alabama Rules of Civil Procedure, have been amended. Rule 26(c) specifically is amended to expressly authorize the trial court to allocate the expenses of discovery, including the expense of restoring or replacing lost information under Rule 37(g), Alabama Rules of Civil Procedure. See also Committee Comments to Amendment to Rule 37(g), Alabama Rules of Civil Procedure, Effective December 21, 2018.

District Court Committee Comments

The Advisory Committee has concluded that only very limited discovery should be available in the district court. Of course, the parties may by agreement indulge in the full breadth of discovery available in circuit courts under the Alabama Rules of Civil Procedure. However, absent agreement, discovery is available only on court order within the limits upon the court’s authority to order discovery as are set forth in Rule 26(dc). It is the recommendation of the Advisory Committee that such discovery as is permitted by the court in its discretion be kept to a minimum in each case. When review of motions seeking discovery in cases of more than minimal jurisdictional amount proves to be unduly burdensome on the court’s time, a standing order permitting a limited number of interrogatories or requests for admissions could be imposed by local rule for cases having an amount in controversy over a designated limit.

Note from the reporter of decisions: The order amending Rules 4, 4.1, 4.2, 4.3, 4.4, 6(a), 7(b)(2), 17(a), 22(c), and 26(b), Alabama Rules of Civil Procedure, effective August 1, 2004, is published in that volume of Alabama Reporter that contains Alabama cases from 867 So.2d.

Note from the reporter of decisions: The order amending, effective February 1, 2010, Rule 16, Rule 26, Rule 33(c), Rule 34, Rule 45, and Form 51A, and adopting effective February 1, 2010, Rule 37(g) and the Committee Comments to Amendment to Rule 16 Effective February 1, 2010, the Committee Comments to Amendment to Rule 26 Effective February 1, 2010, the Committee Comments to Amendment to Rule 33(c) Effective February 1, 2010, the Committee Comments to Amendment to Rule 34 Effective February 1, 2010, the Committee Comments to Adoption of Rule 37(g) Effective February 1, 2010, and the Committee Comments to Amendment to Rule 45 Effective February 1, 2010, is published in that volume of Alabama Reporter that contains Alabama cases from 20 So. 3d.

Note from the reporter of decisions: The order amending Rule 26(b)(1), Rule 26(b)(2), Rule 26(c), and Rule 37(g) and adopting the Committee Comments to the amendments to Rule 26(b)(1) and Rule 26(b)(2), Rule 26(c), and Rule 37(g) Effective December 21, 2018, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.