By: Casey R. Langel
The New Jersey Supreme Court has adopted several amendments to the Court Rules, effective September 1, 2016. (http://www.judiciary.state.nj.us/notices/2016/n160809a.pdf) Below is a summary of the most significant Rule changes, including those relating to discovery of electronically stored information, and the content of appeal briefs.
• Discovery of Metadata (Rules 4:10-2(f) and 4:18-1(f))
Electronic discovery and how to deal with electronically stored information (“ESI”) are not new issues for most New Jersey businesses. Rule 4:18-1 already allowed for the discovery of ESI. The Supreme Court has now amended the rule to address a less familiar issue with ESI: “metadata.” “Metadata” is the information embedded within an electronic file that reveals information about the file, including information about the file’s author, date of creation, dates when edited, the physical location where it was created, and information about who accessed the documents. Metadata exists beneath the surface of most documents and files. Metadata can sometimes contain information crucial in a litigation.
The Supreme Court’s new Rule 4:18-1(f) fills a gap in the Rule about “metadata.” Parties are explicitly permitted to request metadata stored within ESI. Technological ignorance is no longer an excuse and the Official Comments to the Rule instruct that “litigants and lawyers should be aware that metadata may be present in electronic documents produced in discovery.” The parties’ obligation to preserve documents is now extended explicitly to metadata.
The burden to sort out the necessary extent of electronic discovery is initially placed on the parties, who “are encouraged to meet and confer about the format in which they will produce electronic documents. Parties also should seek agreement on whether the receiving party may review unrequested metadata in electronic documents. For example, the parties may agree not to ‘strip’ documents of metadata (due to spoliation concerns), or to refrain from reviewing metadata in electronic documents when metadata has not been specifically requested in discovery. If lawyers are permitted to review metadata in electronic documents submitted in discovery, they should agree on the manner in which metadata will be addressed in a privilege log.”
If the parties cannot agree, trial courts will ultimately decide based on traditional proportionality principles regarding the extent the production of metadata is necessary.
• Service of Document Subpoenas (Rule 1:9-3)
Subpoenas that seek only the production of documents may now be served by registered, certified or ordinarily mail, but must include a signed acknowledgement by the recipient.
• Trial Briefs (Rule 1:6-5)
For the first time, there are now page limitations on trial briefs. For non-dispositive motions (all motions except motions to dismiss and motions for summary judgment), opening briefs may not exceed 40 pages. For motions to dismiss and motions for summary judgment, the parties are given 65 pages for their opening briefs. Reply briefs for all motions are limited to 15 pages. Parties must make a written application to the court for permission to file an over-length brief, including information as to why more pages are needed.
• Appellate Brief Amendments (Rule 2:6-2)
Rule 2:6-2, regarding “Contents of Appellant’s Brief” has been amended in two significant ways:
First, an appellant’s brief must now “include in parentheses at the end of the point heading the place in the record where the opinion or ruling in question is located or if the if the issue was not raised below a statement indicating that the issue was not raised below.”
Second, appellants’ briefs must now include a table of judgments, orders and rulings being appealed before the table of citations identifying the location in the record of the judgments, orders, and any written or oral opinions appear, including any intermediate decisions that are being challenged.