eDiscovery Daily Blog

State eDiscovery Rules: States without eDiscovery Rules Changes

Last month, we noted how Oklahoma was the latest state to adopt new amendments to their Rules of Civil Procedure to address discovery of electronically stored information (ESI).  At the beginning of the new year, Wisconsin becomes the latest state to adopt eDiscovery rules (more to come on that in an upcoming blog post).

At that point, 37 out of 51 states (we’re considering District of Columbia a “state” for this consideration) will have adopted at least some procedural rules which address eDiscovery issues.  One of those states, Washington, has only enacted rules that address the non-waiver of the attorney-client privilege and attorney work product.

That leaves 14 states (including DC) that have not enacted any rules changes that address discovery of ESI.  They are (with current status, if known – at this point, most of these states have no available status information on eDiscovery adoption):

  • Colorado: The Colorado Supreme Court Committee on Rules of Civil Procedure reported in January 2008 no need for e-discovery rule amendments.  A limited pilot program involving only complex business and medical malpractice cases is reportedly being considered for district courts in the Denver area.
  • District of Columbia: The DC Court of Appeals has stayed the requirement that the Superior Court adhere to the Federal Rules (D.C. Code § 11-946) to enable the Superior Court and its advisory committee time to revise the local rules for eDiscovery. In November 2010, revisions were approved by the Superior Court and transferred to the Court of Appeals for final approval.
  • Georgia
  • Hawaii
  • Kentucky
  • Massachusetts: The eDiscovery subcommittee of the Supreme Judicial Court Rules Advisory Committee has finished a draft of eDiscovery rules which will be reportedly submitted to the entire Advisory Committee. If approved, it would then be published for comment. ESI has long been recognized as subject to discovery as a document, which is defined to include “data compilations.” See 49 Mass. Prac., Discovery § 7:1 (Electronic Discovery – Generally).
  • Missouri
  • Nevada
  • Oregon: On September 11, 2010, the Council on Court Procedures of the Oregon Supreme Court has released for public comment a limited proposal regarding electronic discovery.  After opportunity for comment, the proposal will be submitted to the Oregon Legislature for action, with enactment taking effect no earlier than January 1, 2012.
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • South Dakota
  • West Virginia

It will be interesting to see how these remaining states progress and if any of them enact any eDiscovery rules in 2011.

So, what do you think?  Wondering what rules each of the other states have adopted?  Please share any comments you might have or if you’d like to know more about a particular topic.