Amendments to Illinois Supreme Court Rule 201, effective July 1, 2014, are intended to discourage requests for electronically stored information (ESI) that are disproportionate to the issues or amounts at controversy in a case. Changes to the rule also suggest that when entering discovery orders, Illinois courts should weigh the burden and expense of proposed e-discovery against the benefit of its production.
As amended, Supreme Court Rule 201(a) explicitly includes ESI in its definition of “documents” subject to discovery in Illinois, and cautions that “discovery requests that are disproportionate in terms of burden or expense should be avoided.” A new subsection, (b)(4), is also added defining ESI as “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.” The committee notes state that Illinois’ new definition of ESI comports with Federal Rule of Civil Procedure 34 (a)(1)(a) and is intended to be flexible and expansive as technology changes.
Another new section, Rule 201(c)(3), now states that when Illinois courts enter discovery orders, it is appropriate to “determine whether the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit, taking into account 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.”
The committee notes also specifically states that:
The proportionality analysis called for by subparagraph (3) often may indicate that the following categories of ESI should not be discoverable; (A) “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives; (B) random access memory (RAM) or other ephemeral data; (C) on-line access data; (D) data in metadata fields that are frequently updated automatically; (E) backup data that is substantially duplicative of data that is more accessible elsewhere; (F) legacy data; (G) information whose retrieval cannot be accomplished without substantial additional programming or without transforming it into another form before search and retrieval can be achieved; and (H) other forms of ESI whose preservation or production requires extraordinary affirmative measures. See Seventh Circuit Electronic Discovery Committee, “Principles Relating to the Discovery of Electronically Stored Information,” Principle 2.04(d). In other cases, however, the proportionality analysis may support the discovery of some of the types of ESI on this list. Moreover, this list is not static, since technological changes eventually might reduce the cost of producing some of these types of ESI. Subparagraph (3) requires a case-by-case analysis. . . .
Interestingly, this language was originally included in the text of the proposed amendments, but was relegated to the notes upon final approval. Also significant is the committee also states that if “a party intends to request the preservation or production of potentially burdensome categories of ESI, then that intention should be addressed at the initial case management conference in accordance with Supreme Court Rule 218(a)(10) or as soon thereafter as practicable.”