TITLE FIVE — DEPOSITION AND DISCOVERY
Rule 26. Production of Documents, Electronically Stored Information, and Tangible Things; Entry on Land
In General. A party may serve upon any other party a request within the scope of Rule 19(2):
to produce and permit the requesting party or its representative to inspect, copy, test, or sample any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, captures, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or any designated tangible things, in the responding party’s possession, custody, or control; or
to permit entry upon designated land or other property, including property held or occupied in game, possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, record, test, or sample the property or any designated object or operation upon it.
Electronically Stored Information Defined for This Title. For the purposes of this Title, electronically stored information includes:
messages posted in a Discord server channel or thread, including the proceeding communications, together with attachments, embedded content, and the platform’s record of edits and deletions;
direct messages and group direct messages between accounts;
chat, messages, and communications occurring within the game;
screenshots and other photographs of a screen;
video captures, GIF captures, and other moving-image recordings of gameplay or of a screen;
records generated or maintained by the in-game systems of the State, including arrest records, warrant entries, citations, licences, employment records, transaction records, and inventory records;
audio recordings, including recordings of law-enforcement radio transmissions and recordings of depositions taken under Rule 23;
records of the electronic filing system and the docket of the court; and
files stored upon a trusted file hosting service.
Possession, Custody, or Control.
Practical Ability. A party has control of electronically stored information which the party has the practical ability to obtain, including material residing in the party’s own account, material in a server or channel which the party owns, administers, or moderates, and material held by the party’s agent or employee.
Material Held by a Platform. A party does not have control of material held solely by the operator of a platform and not accessible to the party. Such material shall be sought, if at all, by subpoena under Rule 32 or by order of the court, and no sanction shall be imposed under Rule 26.3 upon a party for failing to produce it.
Governmental Material. Material in the custody of an agency or department of the government shall be sought as Rule 19(12)(d) provides.
Procedure.
Contents of the Request. The request shall:
describe with reasonable particularity each item or category of items to be produced or inspected, and, for electronically stored information, identify so far as practicable the platform, server, channel, conversation, account, or in-game system in which it is expected to reside and the interval of time it is to cover;
specify a reasonable time, place or channel, and manner for the production or inspection and for performing the related acts; and
may specify the form or forms in which electronically stored information is to be produced.
Time to Respond. The party to whom the request is directed shall respond in writing within seventy-two (72) hours after being served. A shorter or longer time may be stipulated to under Rule 22 or ordered by the court, but no stipulation shall extend the time beyond the close of the pre-trial period allowed by Rule 6(1) without leave of court.
Responding to Each Item. For each item or category, the response shall either state that production and the related activities will be permitted as requested, or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. Production shall then be completed no later than the time for inspection specified in the request, or another reasonable time specified in the response and in any event within the pre-trial period allowed by Rule 6(1).
Objections. An objection shall state whether any responsive material is being withheld on the basis of that objection. An objection to part of a request shall specify the part and permit production of the rest. A general objection that does not identify the request to which it is directed and the specific ground on which it rests is of no effect.
Objection to Form. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form was specified in the request, the responding party shall state the form or forms it intends to use.
Producing Documents and Electronically Stored Information. Unless the parties stipulate under Rule 22 or the court orders otherwise, the following procedures apply:
Organization. A party shall produce documents as they are kept in the usual course of its affairs, or shall organize and label them to correspond to the categories in the request.
Form Not Specified. If a request does not specify a form for producing electronically stored information, the responding party shall produce it in a form or forms in which it is ordinarily maintained, or in a reasonably usable form or forms.
One Form Only. A party need not produce the same electronically stored information in more than one form.
Manner of Delivery. Production shall be made by transmitting the material in the proceeding communications or by direct message to each other party. Where the volume, size, or format of the material makes such transmission impracticable, or where a document exceeds fifty (50) megabytes, production may be made, dependent on the rules implemented by the presiding judge, by upload to a trusted file hosting website, in which event the producing party shall post in the proceeding communications the address at which the material may be obtained together with a manifest identifying each item produced, and shall maintain the material at that address until the action is concluded.
Chat Logs and Message Records. A chat log, channel record, or record of direct messages shall be produced as a continuous and unedited export or capture, identifying the server and channel or the conversation, the usernames of every participant, and the interval of time covered, expressed in Coordinated Universal Time. A producing party shall not omit messages within the stated interval, and shall state expressly if any message within the interval has been withheld and upon what ground.
Captures. A screenshot, video capture, or GIF capture shall not be cropped, edited, annotated, or compressed so as to omit material context. Upon request, the producing party shall produce the unedited original from which a capture was made. Production of a capture does not satisfy a request for the underlying log, record, or file where that log, record, or file is within the producing party’s control.
Identifiers and Timestamps. Electronically stored information shall be produced bearing the usernames, timestamps, message identifiers, and other identifying data it ordinarily bears. No party shall strip, alter, or obscure such data, except that a party may withhold data as to which it makes a claim under Rule 19(6)(a).
Translation. Information which can be obtained only after translation shall be translated by the responding party into a reasonably usable form.
Authentication Not Waived. Production under this rule does not establish the authenticity or admissibility of the material produced, which remain governed by the Ridgeway Rules of Evidence, including Rid. R. Evid. 901. A party may establish authenticity by request for admission under Rule 26.1.
Inaccessible Electronically Stored Information.
Objection. A responding party may object to the production of electronically stored information which is not reasonably accessible because of undue burden or cost, and any such objection shall specify the reason that the information is inaccessible. Grounds which may render information inaccessible include that it has been removed by the retention policy of the platform on which it resided; that it resides in an account or server to which the responding party no longer has access; and that it can be recovered only by forensic means.
Burden. Upon a motion to compel or for a protective order, the person claiming inaccessibility bears the burden of showing inaccessibility.
Good Cause. If that showing is made, the court may nonetheless order production if the requesting party shows good cause, considering the factors stated in Rule 19(2)(b), and may specify conditions for the production, including that the requesting party bear all or part of the expense.
No Excuse for Loss Caused by the Party. Inaccessibility resulting from an act or omission of the responding party after the duty to preserve attached is not a ground for objection under this subdivision and is governed by Rule 26.3(7).
Duty to Preserve Electronically Stored Information. Upon service of the complaint, or upon the earlier time at which a party knows or reasonably should know that an action is contemplated, a party shall take reasonable steps to preserve electronically stored information within its control that is relevant to the claims or defenses in the action. Reasonable steps include suspending any automatic deletion within the party’s control; exporting or capturing material subject to a retention limit of the platform on which it resides; and refraining from deleting or editing messages, from purging or deleting a channel or server, and from abandoning or deleting an account in which relevant material resides. This subdivision does not require a party to preserve material it does not control, or to preserve duplicative material. Rule 26.3(7) governs a failure to comply with this subdivision.
Entry on Land or Other Property.
Request. A request under Rule 26(1)(b) shall specify the time at which entry is to be made; the location, identified by street address, in-game landmark, or coordinates sufficient to identify it; the persons who will enter; and the manner of the inspection, including whether the requesting party will photograph or record.
Response. The responding party shall admit the requesting party and one representative, together with any additional person the court permits, and shall not obstruct, alter, or conceal the condition of the property before the inspection.
Recording. The requesting party may photograph or record the property and any designated object or operation upon it, unless the court orders otherwise. A recording made under this paragraph is subject to Rule 26(5)(f).
Non-Parties. A non-party may be compelled to produce documents, electronically stored information, and tangible things, or to permit an inspection, only as provided in Rule 32. The provisions of Rule 26(5) and Rule 26(6) apply to a production by a non-party in the same manner as Rule 32(6) provides.
Production Not Filed. A request, a response, and the material produced are discovery material governed by Rule 19(12) and shall not be tendered to the electronic filing system except as that subdivision permits. Material subject to an order under Rule 19(7) shall not be tendered to the electronic filing system in any circumstance, the system providing no capacity to seal, redact, or withdraw a document.