State eDiscovery Rules Archives

State eDiscovery Rules: Pennsylvania Supreme Court Amends eDiscovery Rules, Rejects Federal Rules

June 13, 2012

Last week, the Pennsylvania Supreme Court adopted amendments to the rules on how discovery of electronically stored information is handled in the state. However, the chairwoman of Pennsylvania’s Civil Procedural Rules Committee, Diane W. Perer, has expressly rejected federal law on the subject in her explanatory comment stating that, despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.” Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law”.

The explanatory comment also discusses the “Proportionality Standard” and its application to electronic discovery, as well as “Tools for Addressing Electronically Stored Information”. When it comes to proportionality, Pennsylvania courts are required to consider:

“(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;

(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;

(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;

(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and

(v) any other factors relevant under the circumstances.”

When it comes to tools for addressing ESI, the comment stated that "[p]arties and courts may consider tools such as electronic searching, sampling, cost sharing and non-waiver agreements to fairly allocate discovery burdens and costs. When using non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties."

The amendments affect rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011. For example, in Rule 4009.1, the court added the phrase "electronically stored information" to the "production of documents and things" a party may request. It also added a subsection that a party requesting ESI "may specify the format in which it is to be produced and a responding party or person not a party may object." If no format is requested, the rule states the ESI can be produced in the form in which it is typically maintained.

In some cases, the amendments affect only the notes, not the substance of the rule itself. For example, in a note to Rule 4009.11 regarding the request for production of documents and things, the court said a request for ESI should be "as specific as possible."

So, what do you think? Was it necessary for Pennsylvania to distance themselves from the Federal rules, or was it a good idea? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: For an Appropriate eDiscovery Outcome, Call the Master

April 30, 2012

Special Master, that is.

Last week, Fios sponsored a webcast entitled Special Masters & e-Discovery with Craig Ball, who, in addition to being a prolific contributor to continuing legal and professional education programs throughout the US (and previous thought leader interviewee on this blog) has served as court-appointed special master in 30 cases (including at least one case covered here). Not surprisingly, the webcast was very informative, reflecting Craig’s considerable experience and knowledge in having served in that role in so many cases. A few highlights:

Appointing a Special Master: In Federal cases, Fed. R. Civ. P. 53 discusses the ability for a court to appoint a master with the parties’ consent. Several states also have equivalent rules, for example, Rule 171 of the Texas Rules of Civil Procedure governs the ability to do so in Texas.
Circumstances Where Special Master is Most Often Required: Special masters are typically called in when special knowledge is required that neither party (nor their experts) possesses, or when one party is suspected of malfeasance. Craig estimated that about half of the thirty cases where he has been retained have been because of suspected malfeasance by one party. From an expertise standpoint, Craig noted that he most often fills this role related to a computer forensics need.
To Be “Special”, You Need to “Master” More than One Skill: Special masters need not only to be able to understand the law, they also need to understand systems, forms of ESI, mechanisms for preservation and formats of production. In other words, they need the ability to “speak Geek”.
Special Masters Are Different From Mediators: A mediator’s job is to obtain agreement between parties. While a special master may also do that to a degree, he/she must also apply good sense to the situation. Craig’s analogy was that “just because both lawyers believe that they can fly” doesn’t mean that the special master should concur with that agreement.
Why Not Rely on the Judge for Such Services?: Craig noted that many judges don’t have the technical expertise to adequately address all eDiscovery issues, so a special master can be called upon to provide recommendations regarding those issues to the Court.
Special Masters Are, Unsurprisingly, Not Free: Typically, they charge “senior partner” rates, reflecting their advanced level of expertise and experience. Who pays? It depends on the case, but potential malfeasance by a party can slant the costs to that party. Special masters add value that can result in potentially significant cost savings to one or both parties, so they typically recoup those costs (and, often, a lot more).

The webcast also referenced two articles related to the subject of special masters and eDiscovery:

E‐Discovery: A Special Master's Perspective: Written by Craig himself, this nine page article talks about the pros and cons of Special Masters, the eight questions that lawyers need to be able to answer when working with special masters and the three typical reasons that eDiscovery fails, among other topics. It also provides a terrific appendix with a two page Exemplar ESI Special Master Appointment Order.
Special Masters and e-Discovery: The Intersection of Two Recent Revisions to Federal Rules of Civil Procedure: This fifty-nine page article was written by The Honorable Shira A. Scheindlin (United States District Judge for the Southern District of New York and presiding judge of the notable Zubulake v. UBS Warburg case) & Jonathan M. Redgrave (founding partner of the firm of Redgrave, Daley, Ragan & Wagner and Chair Emeritus of The Sedona Conference’s® Working Group on Best Practices for Electronic Document Retention and Production). It discusses the changes to Rule 53, governing the appointment of special masters and the changes to the Federal Rules for eDiscovery, suggesting appropriate uses for special masters for legal and technical issues.

If you missed the webcast (which is too bad, because Craig was entertaining and informative, as always), these articles provide good information on the use of special masters in eDiscovery.

So, what do you think? Have you ever used a special master to address eDiscovery issues? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Law: Texas Model Order for Patent eDiscovery Now In the Public Comment Phase

March 7, 2012

In a blog post last October, we discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. At that time, the "Model Order on E-Discovery in Patent Cases" had been unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in such cases. This version of the model order is included in proposed local rule amendment GO-12-06 for the Eastern District of Texas. The amendment has been approved by the judges of the district, subject to public comment, the deadline for which is March 23, a little over two weeks from now.

Reviewed by a working group of the Eastern District's Local Rules Advisory Committee at the court's request to determine whether it should be included in the district's local rules, the working group recognized the "substantial work that went into the [Federal Circuit's] Model Order" and used it as its "baseline." The district created a redlined version of the Federal Circuit model order and provides detailed commentary explaining the reasons for the changes to the Federal Circuit model. It has some fairly significant changes, some of which include:

Cost Shifting: Item #3, addressing circumstances for considering cost shifting, was stricken;
ESI Production Parameters: A new item #5 has been added to address production parameters, including document image format in TIFF, text-searchable documents, and native files (the way it’s currently written, you can apparently only request native files after receiving a TIFF production, absent agreement of the parties). This section also notes that backup preservation and collection and preservation from voice mail and mobile devices is not necessary (absent a showing of good cause);
Email Production Requests: Item #7, indicating that email production requests will be only propounded for specific issues instead of general discovery, was stricken. The next item, related to specifics of email production requests was expanded quite a bit to address information to be exchanged prior to email production and also allow one deponent per producing party to determine “the proper custodians, proper search terms, and proper time frame for e-mail production requests”;
Email Production Scope: Language was added to indicate that email requests will “identify the custodian, search terms, and time frame”. It also bumped up the limit from five to eight custodians per producing party for each request and bumped up the limit from five to ten search terms per custodian per party.

It will be interesting to see whether any additional modifications are implemented as a result of the public comment period.

So, what do you think? Will model orders become popular as a way to limit the eDiscovery in other types of cases? Are model orders a good idea or are they too limiting? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix

February 2, 2012

At least, not in DC.

Vendors seeking to assist attorneys in offloading substantial portions of discovery-practice need to be careful not to cross the line into the unauthorized practice of law, according to a new ethics opinion by the District of Columbia Bar. On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law released Opinion 21-12 regarding the “Applicability of Rule 49 to Discovery Services Companies.” This opinion provides guidelines for attorneys and discovery vendors regarding supervision of large-scale document reviews and vendors’ marketing practices, which are intended to prevent the unauthorized practice of law (UPL). Under these guidelines, the role of discovery-service providers in the e-discovery process must be limited to administrative, technical, and logistical tasks. This opinion and these guidelines additionally make clear that the onus of supervising a discovery project rests squarely on the shoulders of the D.C. Bar member who holds the attorney-client relationship with the client.

Rule 49 of the District of Columbia Court of Appeals provides:

No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.

The ‘practice of law’ includes “[f]urnishing an attorney or attorneys, or other persons” to provide legal services. Rule 49(b)(2)(F).

Opinion 21-12 provides the following “principles” to provide guidance regarding “the permissible scope of services that may be performed [by document services companies]” without running afoul of the UPL rules. Opinion, at 7.

First, Rule 49’s UPL rules apply only to the provision of legal services in the District of Columbia. To the extent a discovery provider advertises itself as being able to assist with any discovery project occurring in the district, even if the vendor is not physically located in the district, then Rule 49’s prohibitions apply because such company would be viewed as “holding itself out” as being able to provide legal services in the district. Opinion, at 7–8.

Second, in line with the committee’s prior 1999 Opinion 6-99, contract-attorney companies cannot make the final selection of contract attorneys to staff on a project, nor can the companies provide legal supervision over the contract attorneys. Both of those tasks must be handled by a member of the D.C. Bar with an attorney-client relationship with the client. The company’s role should be limited to the administrative aspects of the review (i.e., finding and interviewing reviewers, handling payroll and taxes, making sure the reviewers show up to work, etc.). A company is allowed to provide and supervise a person doing non-legal work if that person is not identified to the client as a lawyer. Opinion, at 8.

Third, a discovery-service company cannot use broad-based statements in its marketing materials (i.e., that the company is an “end-to-end” vendor or can provide “soup-to-nuts” solutions) without including a UPL disclaimer. This disclaimer must appear on the same page, in the same font, and in proximity to the potentially misleading statement. Statements regarding the legal expertise of the company’s staff also must contain similar disclaimers. Opinion, at 8–9.

Although the committee previously examined Rule 49 and its applicability to legal-services providers in 1999 and 2005, the committee saw fit to re-examine its prior decisions because companies providing discovery services “have dramatically expanded the scope” of their offerings. Opinion, at 4. The committee noted that these companies “offer a host of related services, from e-discovery consulting to database management to the eventual production of documents in litigation,” and that the companies also may “offer the physical space where the document review will take place, computers for conducting the review, and servers for hosting the document review.” Id.

The committee was concerned with the companies’ use of broad language in their marketing materials, including “one-stop shopping” and “comprehensive review and project management,” and about the marketing of companies’ management staff as having legal expertise that would be used in the discovery process. Opinion, at 4–5. Although the committee noted that some services provided by the companies may not “cross the line into legal practice,” such as administrative tasks, allowing discovery companies to make broad-based statements could mislead the public by implying that the companies are providing a legal judgment. Opinion, at 6.

Opinion 21-12 provides clarity to discovery-services vendors by outlining more clearly their role in the discovery process, which is limited to administrative, technical, and logistical functions. The opinion also will assist attorneys overseeing such projects by reminding them of their supervisory role over document reviews.

So, what do you think? Is this a good idea? Should it be adopted in other jurisdictions? Please share any comments you might have or if you’d like to know more about a particular topic.

Source: American Bar Association

eDiscovery Trends: 2012 Predictions – By The Numbers

January 11, 2012

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year. I know what you’re thinking – “oh no, not another set of eDiscovery predictions!” However, at eDiscovery Daily, we do things a little bit differently. We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”). So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes. I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery. Oh, and also here, here and here. Ten sets of predictions in all! Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints. If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment. 2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out. Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches. While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity. Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology. Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices. We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery. Bet you didn’t see that one coming! For a look back at cases from 2011 dealing with social media issues, click here.
Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”. For our posts related to Information Governance and management issues, click here.
Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud. Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions. Perhaps predicting growth of the cloud has become “old hat”.
Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules. Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions. And, one predicted more action on eDiscovery certifications.

Some interesting predictions. Tune in tomorrow for ours!

So, what do you think? Care to offer your own “hunches” from your crystal ball? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: New York Pilot Program Requires Joint Electronic Discovery Submission for Cases Involving ESI

November 28, 2011

On November 1, 2011, the Southern District of New York implemented a new Pilot Program for Complex Cases in "response to the federal bar's concerns about the high costs of litigating complex civil cases." The program is "designed to improve judicial case management of these disputes and reduce costs and delay" and will run for eighteen months.

Fourteen types of civil lawsuits are designated as "complex civil cases," including "stockholder's suits, patent and trademark claims, product liability disputes, multi-district litigation, and class actions." District court judges have the power to add or remove a case from the pilot, even if it does not fall in these categories.

Parties to complex cases must submit Exhibit B, Joint Electronic Discovery Submission if they believe relevant ESI that is potentially responsive to current or future discovery requests exists. In addition, parties must certify that "they are sufficiently knowledgeable in matters relating to their clients' technological systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf." They must also meet and confer prior to the Rule 16 conference on preservation; methodologies for search and review; sources of ESI; limitations on the scope of production; form of production; managing privileged material, including inadvertent production, clawback and quick peek agreements, and Rule 502(d) orders; and the costs of production, cost-saving measures, and cost allocation.

So, what do you think? Should more jurisdictions adopt such a program? Or should they wait until the results of this pilot are published? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery. For eDiscovery news and best practices, check out the Applied Discovery Blog here.

State eDiscovery Rules: Florida Moves to Adopt New Civil Procedure Rules on eDiscovery

October 7, 2011

Florida is currently preparing to adopt a set of changes to its Rules of Civil Procedure with regard to discovery of ESI, closely founded on the changes made to the Federal Rules in 2006. Based on the recommendation of the Florida Civil Rules Electronic Discovery Subcommittee, the full Rules Committee voted on implementing changes now rather than waiting until 2013 when these rules would normally be considered.

Florida eDiscovery Rules to Mimic Federal Rules – Mostly

On July 29, the Board of Governors of the Florida Bar accepted the plan to adopt changes as soon as this fall – changes that essentially copy those made to the Federal Rules except for the elimination of the Federal Rule 26(f) "meet and confer" conference, which will not be considered a mandatory part of discovery of ESI by Florida courts.

However, since this type of early conference is required by circuit courts in Miami, Orland and Tampa – three of Florida's largest judicial areas – that should minimize the risk that issues of major importance regarding eDiscovery will be overlooked, at least in many major business cases. What's more, Florida has a special rule that mandates early conferences in cases that are considered "complex".

New Florida Rules

The new rules are expected to have a significant positive effect on Florida courts, for several reasons:

The near-duplication of current federal rules for eDiscovery provides Florida courts with much-needed guidance on the role and implications of ESI in discovery.
It creates consistency between federal and state rules, important where national corporations may be involved in cases in Florida.
It also enables Florida courts to rely on federal precedent, preventing Florida lawyers from the need to "reinvent the wheel," and allowing them to draw on federal decisions and judgments.
Finally, the similarities between the new Florida rules and existing federal rules will prevent plaintiffs from "shopping" courts depending on the rules and regulations assigned to eDiscovery.

With the improvement in clarity of eDiscovery procedures and the strong connection between state and federal rules, these amendments to the Florida Rules of Civil Procedure seem poised to make discovery proceedings simpler and easier in the sunshine state.

So, what do you think? Are the changes to Florida's eDiscovery procedures positive? Is the omission of something like Federal Rule 26(f) a serious problem, or is it insignificant? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Law: Texas Rule 196.4 Protects Parties from "Undue Burden or Cost"

September 16, 2011

A recent article published in Texas Lawyer and reprinted on Law.com raises the question of extensive and costly eDiscovery requests and how to handle them. The authors of Keep E-Discovery Costs from Torpedoing Litigation Budgets present a hypothetical scenario where the opposing counsel has requested production of 10 years of legacy electronic data – a prospect that could cost more in recovery expenses than the value of the entire lawsuit. What is the best approach for counsel to take under the circumstances and what kind of legal recourse is there if producing extensive amounts of electronic information doesn't make sense?

Meet Texas Rule 196.4

The answer – in the state of Texas, at least – is found in Texas Rule of Civil Procedure 196.4. Like Federal Rule of Civil Procedure 26(b)(2), Rule 196.4 states that parties must comply with "reasonable" production requests, but are not forced to produce electronic information for discovery if it cannot be retrieved "through reasonable efforts." So, when it comes to unduly burdensome discovery requests, don’t mess with Texas!

Rule 196.4 also includes a provision that makes it possible to shift the cost of extensive discovery production to the requesting party. However, an attorney's ability to make a case for challenging a production request or shifting the cost of such production depends on thorough knowledge of the client's information systems. It's paramount to know the details of the client's data storage, backup systems, old and new equipment in order to make an objection on grounds of either Texas or Federal law.

Rule 196.4 Still Being Clarified

Courts are still ruling on how and when this rule applies, so it remains a useful recourse but not a foolproof procedure for issues surrounding extensive (and expensive) production. Therefore, courts have used Federal Rule 26(b)(2) and federal case law to help apply an understanding of what’s reasonably accessible. In In Re Weekley Homes, LP (2009), the Texas Supreme Court addressed when a trial court may order production of information that is not reasonably available, but instructed trial courts to consider "the reasonable availability of information on a case-by-case basis" which leaves the implementation of these rules open-ended for the moment.

The Texas Lawyer article references other important cases, including the landmark Zubulake v. UBS Warburg LLC (2003) opinion (Zubulake I) which famously adopted a classification system of five categories of media on which electronic data is commonly stored, from most accessible to least, as follows:

Active, online data, such as hard drives;
Near-line data, such as an older robotic storage devices like optical disks;
Offline storage/archives, such as removable media that can be labeled and stored on a shelf like CDs and floppy disks;
Backup tapes, which are sequential access devices not intended for recovery of individual files; and
Erased, fragmented or damaged data.

Understanding these five categories of media and their accessibility is a must for anyone to be prepared to respond to discovery requests, especially like the one posed hypothetically at the beginning of the article.

So, what do you think? Have you ever been hit with a production request with a scope that would have raised eDiscovery costs beyond the value of the suit itself? If so, what did you do? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: North Carolina Adopts eDiscovery Rules

August 17, 2011

Earlier this year, Wisconsin and Connecticut adopted new eDiscovery rules. On October 1, changes to the North Carolina Rules of Civil Procedure will go into effect to provide guidelines for handling eDiscovery in North Carolina state courts. The rule changes, for the most part, follow the same guidelines as the 2006 Amendments to the Federal Rules of Civil Procedure. Here is a summary of the changes:

Discovery Plans: Parties to a case now have the right to require the development of a discovery plan, to manage all discovery in the case (not just eDiscovery). The parties are required to meet to discuss the possibility of settlement and the preparation of a discovery plan to address discovery of electronically stored information (“ESI”), production of ESI, discovery limitations or phasing, and the deadline for completion of all discovery.
Required Production of Metadata: The definition of ESI now expressly includes the metadata for date sent, date received, author, and recipients. The definition of ESI does not include other metadata unless the parties agree or the court so orders. This is a significant departure from the Federal Rules.
Privilege Logs: Privilege logs describing privileged material withheld from discovery are now required.
Inadvertent Disclosure: The new rules protect inadvertent disclosure of privileged information during discovery.
Sanctions: The amendments adopt a safe harbor provision which mirrors the federal rule, protecting a party from sanctions for losing ESI “as a result of routine, good faith operation of an electronic information system.”
Subpoenas: Rule 45 of the NC Rules of Civil Procedure has been revised to provide that parties producing documents need not produce the same ESI in more than one format, or provide ESI that is not reasonably accessible because of undue burden or costs.

So, what do you think? Are you aware of the “state” of eDiscovery rules in your state? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Connecticut Approves Rules Updates Governing eDiscovery

July 15, 2011

Last year, eDiscovery Daily identified states that have not currently enacted any rules changes for eDiscovery. One of the states that had previously enacted eDiscovery rules changes – Connecticut – has updated their rules as Superior Court judges made several amendments to the Connecticut Practice Book that will affect eDiscovery and other legal practices in Connecticut courts.

A series of amendments to the Connecticut Practice Book, the document that governs all legal practice in the state of Connecticut, was adopted on June 20, 2011. Many of these changes affect eDiscovery practices as itemized below. The majority of the amendments, including those changes involving eDiscovery, are slated to take effect on January 1, 2012.

eDiscovery handling requirements are addressed in Connecticut's existing rules, but the revisions to the Practice Book lay out best practices more completely and explicitly, providing additional instruction for courts, attorneys, and their clients.

The relevant amendments to eDiscovery practices include:

New Rule 13-5(9): This Rule enables the court to issue a protective order allowing for cost allocation and preventing undue burden on any party in the course of retrieving documents and information for eDiscovery.
Revisions to Rule 13-9(d): These amendments deal with the format in which electronic documents are produced for the court and for eDiscovery purposes.
New Rule 13-14(d): This new Rule limits liability in cases where eDiscovery information has been lost or is inaccessible due to understandable flaws in normal routines, or reliance in good faith on systems that failed to back up data. Closely based on Federal Rule 37(f), it deals with accidental data loss in situations where there is a demonstrable absence of intention to destroy or avoid preserving records.
New Rule 13-33: This new Rule, Claim of Privilege or Protection After Production, defines the procedure by which parties may move to protect information as privileged after it has been produced for pre-trial discovery.

The complete text of the Connecticut Practice Book can be accessed online, as well as the new amendments that will come into effect in 2012.

So, what do you think? Do these amendments streamline eDiscovery and make it more practical and enforceable? Please share any comments you might have or if you'd like to know more about a particular topic.

State eDiscovery Rules