Arizona

Civil Procedure

Civil Procedure

Rule 45.2 – Dispute Resolution Procedures Regarding Preservation Requests

(a)Generally; Scope. This rule governs the resolution of disputes concerning the scope of a party’s or nonparty’s duty to preserve electronically stored information.
(b)Definitions. For purposes of this rule:

(1) A “preservation request” is a written notice to a party or nonparty requesting that the recipient preserve electronically stored information for possible use in pending or anticipated litigation. The preservation request may, but need not, relate to anticipated litigation against the nonparty.
(2) A “nonparty” is a person who receives a preservation request under this rule and is not a party to a pending action in which the request is made.
(3) A “requestor” is a person who makes a preservation request.
(4) A “petitioner” is a nonparty who files a petition under Rule 45.2(e).
(5) A “respondent” is a requestor who has been identified as a person expected to oppose a petition filed under Rule 45.2(e).
(c)Objections. A party or nonparty receiving a preservation request may serve a written objection on the requestor. Grounds for objection may include that there is no duty to preserve electronically stored information under Rule 37(g)(1), or that the requested preservation would impose an undue burden or expense. A party or nonparty does not waive an objection to a preservation request by failing to object in writing under this rule, but the dispute resolution procedures in Rule 45.2(d) and (e) apply only if a written objection is served.
(d)Dispute Resolution Procedures–Pending Action.

(1) Parties. If the parties to a pending action are unable to satisfactorily resolve any dispute regarding the preservation of electronically stored information and seek a resolution from the court, they must follow the procedures in Rule 26(d).
(2)Nonparties. If a preservation request is made to a nonparty in connection with an action pending in superior court, the nonparty may move for a Rule 26(c) protective order in the action. The motion must be accompanied by a Rule 7.1(h) good faith consultation certificate.
(e)Dispute Resolution Procedures–No Pending Action.

(1) Content of Petition. A nonparty may file a verified petition, asking the court to determine the existence or scope of any duty to preserve electronically stored information. The petition must be titled “Verified Rule 45.2 Petition.” Any petition must:

(A) be accompanied by a Rule 7.1(h) good faith consultation certificate;
(B) identify, by name and address, the respondent expected to oppose the petition;
(C) identify–in separately numbered paragraphs–each issue on which the petitioner and the respondent were unable to reach agreement, and state the petitioner’s position on each issue;
(D) if the petitioner contends that a preservation request imposes an undue burden or expense, describe the burden and provide an estimate of the expense likely to be incurred; and
(E) state the specific relief requested.
(2)Service of Petition; Response; Reply. The petition must be served on the respondent in the same manner that a summons and pleading are served under Rule 4, 4.1, or 4.2, as applicable. The petition must be accompanied by a notice in the form set forth in Rule 84, Form 7. Proof of service must be made as provided in Rule 4(g). The requestor must serve and file any response within 20 days after service is complete, if service is made in Arizona, or within 30 days after service is complete, if service is made outside the State of Arizona. The response must be in the form of a memorandum. The petitioner may file a reply memorandum within 5 days after service of any response. The page limitations of Rule 7.1(a)(3) apply to any response or reply filed under this rule.
(3) Applicable Procedures; Hearing. The petition will be decided under the Rule 7.1 procedures governing motions. Unless the court orders otherwise for good cause, no discovery is permitted. Unless the petitioner and the respondent stipulate otherwise, the court must hold a hearing on the relief the petition seeks.
(f)Determination. The court may issue orders limiting a party or nonparty’s preservation obligation based on the factors set forth in Rule 26(b)(1) and 37(g). If the court finds that preservation would impose an undue burden or expense on the petitioner, preservation may be ordered only on such conditions as are just, which may include requiring the requestor to pay some or all of the reasonable costs of preservation. Reasonable expenses incurred in connection with a proceeding under this rule, including attorney’s fees, may be awarded as allowed by Rule 37(a)(5).
(g)Effect of Order. A party or nonparty who complies with a preservation order obtained under this rule is deemed to have taken reasonable steps to preserve electronically stored information under Rule 37(g).
(h)No Waiver or Prejudice. No waiver or prejudice results from a party or nonparty’s election not to invoke the dispute resolution procedures in Rule 45.2(d) or (e), as applicable. The election not to seek relief under this rule is not deemed to be a failure to take reasonable steps to preserve electronically stored information under Rule 37(g) or to otherwise preserve information or documents later requested in a pending action.

Ariz. R. Civ. P. 45.2

Adopted August 31, 2017, effective July 1, 2018.