The Hawaii Judiciary is proposing amendments to the Hawaii Rules of Civil Procedure (HRCP) to address e-discovery issues.  The deadline for submitting comments is April 17, 2014.  The proposed amendments are available here.

Some of the more notable changes being proposed are:

• The addition of references to “electronically stored information” (ESI) to Rule 26 (general discovery provisions), Rule 30 (depositions), Rule 33 (interrogatories), Rule 34 (document requests), Rule 37 (discovery sanctions and motions to compel), and Rule 45 (subpoenas)

• Amended Rule 26 expressly permits discovery of ESI with the caveat that a party need not provide  discovery of ESI from sources that are not reasonably accessible because of undue burden or expense.  The party claiming undue burden or expense has the burden to make that showing.  However, even if the showing is made, a court may still order disclosure or discovery of ESI for good cause.

• Amended Rule 34 allows document requests to specify the form in which documents or ESI are to be produced.  The responding party may object to the requested form, and if it does so, it must state the form it intends to use.  If a request does not specify a form for producing the requested documents or ESI, the responding party must produce the requested materials in the form in which they are ordinarily maintained or in a form that is reasonably usable.  A party does not need to produce the same documents or ESI in more than one form absent showing of good cause.

• Amended Rule 37 prohibits a court from imposing sanctions for failure to provide ESI lost as a result of routine, good-faith operation of an electronic information system absent exceptional circumstances.

• Amended Rule 45 would address requests for, and production of, ESI in the context of subpoenas.

For more information on the proposed amendments, visit the Judiciary’s website.  To submit comments online, click here.