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BILL AS INTRODUCED 2007-2008

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S.236

Introduced by   Senator Illuzzi of Essex-Orleans District

Referred to Committee on

Date:

Subject:  Court procedure; discovery of electronically stored information

Statement of purpose:  This bill proposes to clarify the manner in which electronically stored information is subject in court proceedings to discovery rules regarding the production of documents and tangible things. 

AN ACT RELATING TO DISCOVERY OF ELECTRONICALLY STORED INFORMATION

Sec. 1.  Rule 34 of the Vermont Rules of Civil Procedure is revised to read:

Rule 34.  Production of Producing Documents, Electronically Stored

                Information, and Tangible Things and Entry Upon, or Entering onto

                Land for Inspection and Other Purposes

(a)  Scope.  Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

(b)  Procedure.  The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

The party upon whom a request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. Any Superior Judge may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The request being addressed shall be reproduced before the response. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

(a)  In General.  A party may serve on any other party a request within the scope of Rule 26(b):

(1)  To produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

(A)  any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

(B)  any designated tangible things.

(2)  To permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b)  Procedure.

(1)  Contents of the Request.  The request:

(A)  Shall describe with reasonable particularity each item or category of items to be inspected.

(B)  Shall specify a reasonable time, place, and manner for the inspection and for performing the related acts.

(C)  May specify the form or forms in which electronically stored information is to be produced.

(2)  Responses and Objections.

(A)  Time to Respond.  The party to whom the request is directed must respond in writing within 30 days after being served.  A shorter or longer time may be stipulated to or ordered by the court.  

(B)  Responding to Each Item.  For each item or category, the response shall either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.

(C)  Objections.  An objection to part of a request shall specify the part and permit inspection of the rest.

(D)  Responding to a Request for Production of Electronically Stored Information.  The response may state an objection to a requested form for producing electronically stored information.  If the responding party objects to a requested form, or if no form was specified in the request, the party shall state the form or forms it intends to use. 

(E)  Producing the Documents or Electronically Stored Information.  Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i)  A party shall produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.

(ii)  If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(iii)  A party need not produce the same electronically stored information in more than one form.

(c)  Nonparties.  As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.    



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us