R. 4:104-5. — Production of Documents; Electronically Stored Information; Entry Upon Land for Inspection and Other Purposes; Pre-Litigation Discovery

a. Contents of Response to Discovery Request. A party’s written response under R. 4:18-1(b)(2) shall, in addition to providing the information described in R. 4:18-1(b)(2), state specifically: (1) whether the objection(s) interposed pertain to all or part of a request being challenged; (2) whether any documents or categories of documents are being withheld and, if so, which of the stated objections forms the basis for the responding party’s decision to withhold otherwise responsive documents or categories of documents; and (3) the manner in which the responding party intends to limit the scope of its production.

b. Failure to Provide Electronically Stored Information.

1. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: A. upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or B. only upon finding that that the party acted with the intent to deprive another party of the information’s use in the litigation may: (i) presume that the lost information was unfavorable to the party; (ii) instruct the jury that it may or must presume the information was unfavorable to the party; or (iii) dismiss the action or enter a default judgment.

2. A party that is subject to an order entered by the court directing the preservation or production of electronically stored information and who acts in compliance with the terms of that order may thereafter apply its regular document destruction procedures to any electronically stored information that has not been ordered to be produced or preserved and shall not be subject to any sanction for the destruction of electronically stored information that is not subject to its obligation to produce or preserve under such court order.

c. Privilege Logs.

1. The preference in the CBLP is for the parties to use categorical designations, where appropriate, to reduce the time and costs associated with preparing privilege logs. The parties are required to address such considerations in good faith as part of the meet and confer process and to agree, where possible, to employ a categorical approach to privilege designations. The parties are encouraged to use any reasoned method of organizing the documents that will facilitate an orderly assessment as to the appropriateness of withholding documents in the specified category. If the parties agree to use a categorical approach, for each category of documents that may be established, the producing party shall provide a certification, pursuant to R. 1:4-4, setting forth with specificity the facts supporting the privileged or protected status of the information included within the category. The certification shall also describe the steps taken to identify the documents so categorized, including but not limited to whether each document was reviewed or some form of sampling or electronic keyword searching was employed, and if the latter how the sampling or keyword searching was conducted.

2. In the event the requesting party refuses to permit a categorical approach, and instead insists on a document-by-document listing on the privilege log, the producing party, on a showing of good cause, may apply to the court for an order allowing it to use a categorical approach or allocating costs, including attorneys’ fees, incurred with respect to preparing the document-by-document log.

3. In the event a document-by-document log is prepared, each uninterrupted e-mail chain shall constitute a single entry, and the description accompanying the entry shall include the following: A. an indication that the e-mails represent an uninterrupted dialogue; B. the beginning and ending dates and times (as noted in the e-mails) of the dialogue; C. the number of e-mails within the dialogue; and D. the names of all authors and recipients, together with sufficient identifying information about each person to allow for a considered assessment of the privilege issues.