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Approaches to E-Discovery Rules Vary from State to State

By Elenore Cotter Klingler, Litigation News Associate Editor – October 1, 2009

Less than half the states have their own explicit electronic discovery (e-discovery) rules, but that number continues to grow.

The federal courts’ 2006 amendments to the Federal Rules of Civil Procedure regarding e-discovery are now accompanied by 23 states’ own rules.

State Law Developments
California joined that rank this summer when Governor Arnold Schwarzenegger signed into law revisions to the California Discovery Act [PDF], which for the first time in that state directly regulates the retention and production of electronic information. The revisions passed unanimously through the California legislature, though it remains to be seen if other states will use California as a model for their own revisions.

Wisconsin’s Supreme Court recently received a petition from the state’s Judicial Council to consider e-discovery amendments. Not all states are heading toward revision, however; Florida’s bar has resolved to take a “wait and see” approach before making any substantive changes in the state’s procedural rules.

Though states have been making some departures from the federal rules, many of the state-level amendments simply bring the state’s rules up to date for the e-discovery era.

“Many states who have adopted statutes have rules modeled on the federal rules, so it’s natural to make these changes,” says Martha J. Dawson, Seattle, ABA Section of Litigation member and e-discovery team leader at her law firm.

Departures from the Federal Rules
Dawson, whose practice group has been counseling companies on e-discovery issues since 1997, notes that most departures from the federal rules come in the safe harbor provisions and in the so-called “two-tiered provision” concerning the presumption of inaccessibility of the evidence.

For instance, the new California rules provide safe harbor protection [PDF] for data that are damaged, altered, or overwritten in good faith. This is a broader protection than that of the federal rules, which provides safe harbor only for data that are destroyed in good faith.

Cost-shifting is another area where some states have departed from the federal model. In the case of California, “the rules go out of their way to make it a more businesslike process,” says James E. Gordon, Los Angeles, cochair of the Electronic Discovery subcommittee for the Section’s Pretrial Practice and Discovery Committee.

Gordon says that the California rules, which he believes may become a model for other states’ e-discovery revisions, specifically consider the costs and benefits of electronic production and encourage the parties to consider the amount in dispute when making and responding to discovery requests.

“California has learned from the mistakes of the past and addressed some of the inefficiencies in the federal rules,” he says.

State Trends
Trends in e-discovery jurisprudence are difficult to spot at the state level because reported decisions concerning the discovery process are infrequent. Dawson expects states new to the e-discovery process to look to guidance from other states and the federal bench.

“I doubt anyone is trying to reinvent the wheel because this area is fairly complex. People tend to look for the information and guidance that’s out there,” she says.

Still, many companies should keep in mind both state and federal rules when creating document retention policies and information systems, Dawson advises.

Gordon emphasizes the need to have a formalized identification of all electronic data systems so that companies and counsel know where data reside and what can be reasonably retrieved. Practitioners should always check state and local rules for their client’s jurisdiction, reminds Dawson.

If anything has become clear since the federal rules were amended, it is that e-discovery issues are not going away. Differing jurisdictional rules may cause headaches for counsel and companies, but Dawson sees an upside: “Providing litigants and companies some guidance is always better than being in the dark on things.”

Keywords: Electronic discovery, Federal Rules of Civil Procedure, state law


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