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On October 31, 2018, the Virginia Supreme Court amended Rule 4:1(b)(7)—Virginia’s procedural rule governing discovery of electronically stored information (“ESI”) in civil litigation. The amendment, which became effective on January 1, 2019, alters the procedural requirements for e-discovery in Virginia courts and marks a potentially significant departure from federal law—a departure that is designed to be more favorable to discovery into relevant ESI.

The amendment to Rule 4:1(b)(7) provides as follows, with deleted text struck through, and new text underlined:

(7) Electronically Stored Information. A party need not provide discovery of electronically stored information (“ESI”) from sources that the party identifies as not reasonably accessible because of undue burden or cost.[1] On motion to compel discovery or for a protective order, the party from whom discovery is sought must show has the burden of showing that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 4: 1 (b)( 1). The court may specify conditions for the discovery, including allocation of the reasonable costs thereof.

If the party receiving a discovery request anticipates that it will require the production of ESI and that an ESI protocol is needed, then within 21 days of being served with the request, or within 28 days of service of requests served with the Complaint, the receiving party shall propose an ESI protocol which should address: (A) an initial list of custodians or the person(s) with knowledge of the party’s custodians and the location of ESI, (B) a date range, (C) production specifications, (D) search terms, and (E) the identification and return of inadvertently revealed privileged materials. If the proposed protocol is not acceptable, the parties shall in good faith attempt to meet within 15 days from service of the protocol on the party requesting the ESI. If, after 15 days from service of the protocol, the parties are unable to agree to limits on the discovery of the ESI, on motion to compel discovery or for a protective order, the court shall, in its discretion, determine appropriate limitations or conditions on the ESI request, if any, including allocation of the reasonable costs thereof.

Notably absent from the amended Rule is the “proportionality” requirement found under Rule 26(b)(1) of the Federal Rules of Civil Procedure.[2] The proportionality requirement, which was added to Federal Rule 26(b)(1) in 2015, defines the scope of discovery to be limited in the first instance to those matters that are relevant, non-privileged, and “proportional to the needs of the case.” Of course, the federal rules previously allowed courts to limit overly burdensome and disproportionate discovery.[3] However, by adding the proportionality requirement to Rule 26(b)(1), the Rule requires courts to be “more aggressive in identifying and discouraging discovery overuse,” and, as certain courts have found, narrowed the substantive scope of discovery.[4]

While the Virginia Committee on Discovery of Electronically Stored Information considered whether to emphasize the role of proportionality as it relates to ESI,[5] it ultimately recommended that the Supreme Court not adopt the federal approach.[6] This recommendation was based on concerns that “an amendment mirroring the federal rule changes would inhibit the open exchange of discoverable information.”[7] Of course, courts can still limit discovery that is unduly burdensome or expensive. See Rule 4:1(b)(1). However, the rejection of the federal proportionality approach means that Virginia courts should be more hesitant to curtail discovery into relevant ESI than their federal counterparts.

Rather than following the federal approach, the amendment to Rule 4:1(b)(7) requires the parties to be proactive and seek to resolve any potential issues at the outset of discovery by reaching an agreement on protocols for governing ESI discovery in the case.[8] Such protocols, which have become common place in federal district courts, can be invaluable.[9] They not only preempt many disputes, but also have the potential to curb discovery costs by establishing agreeable and efficient limits and procedures for collection and production of ESI.[10]

Ultimately, the Rule places the burden on the producing party to propose an ESI protocol within 21 days of being served with discovery requests whenever the producing party anticipates that (i) the discovery requests will require the production of ESI, and (ii) an ESI protocol is needed. However, the Rule does not specify when a party should anticipate that an ESI protocol is needed. Thus, Virginia Courts will likely need to provide additional guidance on when parties are required to propose an ESI protocol.

While only time will tell how effective the amendment is in preventing disputes, what is clear is that the amendment is intended to promote and foster e-discovery, and that parties are expected to produce ESI. Indeed, by refusing to emphasize the proportionality requirement, the Rule invites broad discovery into relevant ESI.


[1] Active, online data, such as data on computers and servers, as well as off-line storage, such as flash drives, SD cards, and external hard drives, are almost always considered to be accessible. U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 238-39 (S.D. Cal. 2015); Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., No. CIV.A. 12-3427 JLL, 2013 WL 541972, at *3 (D.N.J. Feb. 11, 2013). Conversely, backup tapes and erased, fragmented or damaged data are frequently defined to be “inaccessible. Carter, 305 F.R.D. at 239.

[2] In determining whether discovery is proportional to the needs of the case, the rule provides for courts to consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

[3] See Fed. R. Civ. P. 26(b)(2)(C)(iii)(pre–2015 version).

[4] XTO Energy, Inc. v. ATD, LLC, No. CIV 14-1021 JB/SCY, 2016 WL 1730171, at *16-18 (D.N.M. Apr. 1, 2016); but see Vigil v. Waste Connections of Nebraska, Inc., No. 8:15CV112, 2016 WL 1698285, at *2 (D. Neb. Apr. 27, 2016) (discoverability is still governed by relevancy).

[5] Rule 4:1(b)(1), like the old Fed. R. Civ. P. 26(b)(2)(C)(iii), authorizes courts to limit discovery, including into ESI, if the discovery is unduly burdensome or expensive.

[6] Boyd-Graves Conference, Report of the Committee on Discovery of Electronically Stored Information (September 2, 2016) available at https://cdn.ymaws.com/www.vba.org/resource/resmgr/2016_meetings/BoydGraves/Part_1.pdf.

[7] Id.

[8] Id.

[9] Nathan D. Dupes & Joseph T. Muzingo, Attacking the Massive ESI Project on Two Fronts, 14 No. 4 DRIIDQ 45 (Winter 2019).

[10] Steven C. Bennet, E-Discovery: Reasonable Search, Proportionality, Cooperation, and Advancing Technology, 30 J. Marshall J. Info. Tech. & Privacy L. 433, 440-41 (2014).