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State eDiscovery Rules

State eDiscovery Rules: Wisconsin Adopts Amendments to Rules for eDiscovery
 

On November 1 of last year, we noted on this blog that Oklahoma had become the latest state to adopt amendments to their Rules of Civil Procedure, leaving only 14 states (including DC) to not have enacted any rules changes that address discovery of ESI as of January 1st of this year.

That’s because on January 1, Wisconsin became the latest state to adopt eDiscovery amendments to their Rules of Civil Procedure.  The amendments affect the following Wisconsin Statutes:

  • §§ 802.10(3)(jm) – Scheduling Order: The scheduling order may address the need for discovery of ESI, which focuses early attention on eDiscovery issues.
  • §§ 804.01(4m) – Discovery Conference: The parties must confer regarding discovery of ESI unless excused by the court (required meet and confer).  The required issues to be discussed include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of proposed discovery (including the extent to which such costs shall be limited).
  • §§ 804.08(3) – Business Records: Parties have the option to produce or allow access to business records in response to an interrogatory.
  • §§ 804.09(1) and (2) – Format of Production: Requesting party may specify “form” of production of ESI and, if no form is requested, information must be produced in the form in which it is ordinarily maintained or in a “reasonably usable form”.
  • §§ 804.12(4m) – Safe Harbor: Contains a safe harbor provision to protect a party who destroys information in good faith according to a routine records retention policy.
  • §§ 805.07(2) – Subpoena: Protect parties from the unreasonable burden of responding to subpoenas asking for ESI by enabling the producing party to produce information in the form in which it is ordinarily maintained or in a “reasonably usable form” and also by permitting testing or sampling of the information instead of inspection of copying.

The required meet and confer provision – §§ 804.01(4m) – was adopted, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory meet and confer rule.  The strong dissent expressed the concern that the requirement “has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation” and noted that, unlike the federal courts, Wisconsin state courts “do not have many cases involving a large number of documents and electronic discovery disputes” and that such a rule would “impose ‘significant added burden on litigants while yielding little benefit.'”  It concluded with a call to “judges, lawyers, and litigants from around the state to monitor this new mandate, and if it is not working, [to] petition the court for change.”

So, what do you think?  Wondering where your state stands?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

State eDiscovery Rules: Oklahoma Adopts Amendments to Rules for eDiscovery
 

Though the amendments to the Federal Rules of Civil Procedure in December of 2006 have affected how discovery of ESI is handled in Federal courts, lawyers who practice exclusively in state court cases may not have had to consider rules for handling of ESI in their cases.  Some states have adopted civil procedure rules for eDiscovery; others have not.

Effective today, one state that has adopted new amendments to their Rules of Civil Procedure is Oklahoma.  Reagan DeWitt-Henderson of Litgistix Business Solutions, based in Tulsa, has written a terrific article that will be published in this month’s Tulsa Lawyer that addresses the Oklahoma rules changes in detail.  To access the article online, click here.

Highlights of the changes (as discussed in the article):

  • ESI is Added to the List of Obtainable Discovery (12 O.S. § 3226).
  • Only Reasonably Accessible Data to be Produced (12 O.S. § 3226): ESI must be “reasonably accessible” or else good cause must be shown for a court order to require its production.  Parties will be required to produce ESI, assuming the ESI sought is not unreasonably cumulative or overly difficult to obtain.
  • ESI Category Added as Form of Production that Can be Specified (12 O.S. § 3234): This rule is amended specifically to list ESI as data that can be requested.  Also, the producing party must generally state the form(s) of production it intends to use, which is significant as form of production (e.g., native files or scanned images, with or without metadata) determines the extent to which the collection is searchable and whether expensive conversion is required to make it searchable.
  • Option to Produce Business Records in Lieu of Answering Interrogatories Now Includes ESI (12 O.S. § 3233): However, a producing party may have to provide proprietary software or technical support to make the ESI useable to the other side or provide the ESI in a format that does not require proprietary software, or uses a free reader like Adobe Acrobat.
  • Must Address ESI in Mandatory Meet & Confer (12 O.S. § 3226): Lawyers must confer to address discovery issues, including issues related to ESI, but reporting to the judge is optional, unless so ordered.
  • “Clawback” of Confidential & Privilege Information After Unintentional Production (12 O.S. § 3226): "Clawback" of potentially privileged/confidential information is now supported, assuming the reasonable steps must have been taken to prevent the production of this material.
  • Third Party Subpoenas (12 O.S. § 2004.1): Many of the same provisions added also apply to third party subpoenas, including production of ESI, form of production and “clawback” of inadvertent productions.
  • Protection from Sanctions for Document Destruction from Good Faith Procedures (12 O.S. § 3237): Addresses the “safe harbor” provision for not providing ESI lost as a result of the routine, good-faith operation of systems but requires implementation of a “litigation hold” when the duty to preserve arises which may include suspending such operations.

Thanks to Reagan and our friends at Litgistix for such a comprehensive article about the Oklahoma rules changes!  Over the next several weeks, we will look at other states that have adopted similar rules and status of states that have not yet done so.

So, what do you think?  Wondering where your state stands?  Please share any comments you might have or if you’d like to know more about a particular topic.