On May 29, 2014, the Supreme Court of Illinois entered an order amending certain Supreme Court rules, with most of the amendments taking effect on July 1, 2014. Chief among the amendments were changes to many of the Supreme Court rules pertaining to discovery. These changes will bring the discovery procedure in Illinois regarding Electronically Stored Information (“ESI”) closer to the practice in the federal courts.
Supreme Court Rule 201 is the general rule in Illinois pertaining to discovery. This rule has long required a party responding to discovery to make “full disclosure” of requested information. Since at least 1995, this rule has also required that “all retrievable information in computer storage” be produced. The phrase was used to define the word “documents.” However, with the 2014 amendment, the rule abandons the phrase “retrievable information in computer storage,” for the more fashionable phrase “electronically stored information (‘ESI’).” For the first time, the rule also includes the definition of “ESI” in subpart (b) (4). ESI is defined to include:
…any writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations in any medium from which electronically stored information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. Ill. Sup. Ct. R. 201(b)(4) (2014).
Amendments to Supreme Court Rule 214, which governs the discovery of documents, objects, tangible things, and the inspection of real estate, also incorporate the definition of ESI. With the amendment to Rule 214, a party responding to a request to produce ESI must produce the ESI in the form specified by the request, or if not specified, in a “form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” (emphasis added). Ill. Sup. Ct. R. 214(b) (2014). This rule now allows a party to object to production on the basis of “proportionality.”
The amendment to Supreme Court Rule 201 also includes, for the first time, the concept of “proportionality.” This is a concept which the federal courts have also recognized as important in dealing with the production of ESI. While proportionality is not specifically limited to ESI in the amendment, the rule and the committee comments both clearly indicate that the concept has particular importance to the discovery of ESI. “Proportionality” is a balancing test for the trial court. It requires the court to determine “whether the burden or expense of the proposed discovery outweighs the benefit.” Among the factors to be considered by the court includes “the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” Ill. Sup. Ct. R. 201(c)(3) (2014).
The committee comments actually identify certain types of ESI that may not be discoverable under the proportionality test, particularly when the preservation or production requires “extraordinary affirmative measures.” Examples given include deleted data on hard drives, RAM, metadata in fields that are frequently updated, and “information whose retrieval cannot be accomplished without substantial additional programming or without transforming it into another form before search and retrieval can be achieved.” The committee, however, also clearly indicates that application of proportionality may support production of the same types of ESI discussed in the section. The committee suggests that as technology changes, the categories of burdensome ESI may change and some types may be less expensive to produce with technological advances. The amendments also incorporate the concept of proportionality with respect to subpoena responses. Ill. Sup. Ct. R. Rule 204(a)(1) (2014).
In another nod to the current practice in federal court, Supreme Court Rule 218(a), which deals with initial case management conferences, now encourages counsel to consider issues concerning ESI and raise them with the court. Committee comments to Supreme Court Rule 219, which deals with the consequences of refusal to comply with the discovery rules or orders, were revised to reflect that the committee believes that the rule is sufficient to cover sanction issues as they relate to electronic discovery. Ill. Sup. Ct. R. Rule 219 (2014), Committee Comments, rev’d May 29, 2014.
The expense of discovery, particularly as it relates to ESI, has frequently been cited by litigants, counsel and legal scholars as a reason for the decline in the number of lawsuits filed, the increase in the use of alternative dispute resolution methods, and for the abolishment of the jury trial system. The introduction of the concept of proportionality should help the trial courts and parties avoid some of the unjustified expense that has occurred in the past, and brings the practice in the Illinois courts closer to the practice in the federal courts. While the 2014 amendments still require a party responding to discovery to be complete and thorough in its responses, a party may now have more success in objecting to discovery requests which are burdensome, expensive and/or irrelevant with the introduction of the concept of proportionality.