State E-Discovery Rules Taking Shape

Sunday, October 4, 2009 - 00:00

With all of the rapid changes and court rulings to the Federal Rules of Civil Procedure regarding e-discovery, it can become a challenge to keep track of what's happening at the state level as well. My colleague, Thomas Y. Allman, regularly provides updates to the state e-discovery rules that we publish on the Fios website (www.fiosinc.com). I thought I'd share some of the latest updates we recently received from him, as well as a couple of other decisions, as states continue to be a hotbed of innovation in e-discovery.

The two most recent state-level actions that have significant e-discovery impact include:

California - On August 14, 2009, the California Judicial Council adopted amendments to California's Rules of Court, including amendments to Rule 3.724, which now requires consideration of issues concerning the discovery of electronically stored information (ESI) when the parties "meet and confer" prior to the initial case management conference. This follows the June adoption by California of comprehensive e-discovery legislation. While largely based on the 2006 amendments to the Federal Rules, the California amendments include a number of unique, procedural features, including:

• It is assumed that a party can inspect, copy, test or sample another party's electronic storage devices.

• Protective orders are necessary when protecting ESI with a not reasonably accessible claim. It is assumed the loser of a protective order skirmish will pay money sanctions unless shown otherwise.

• It will be next to impossible to win a sanctions motion without a "meet and confer" conference. The meet and confer may appear to be an afterthought, but the ESI amendments that preceded it required a meet and confer as part of good faith or due diligence prior to bothering the court with most ESI disputes. The deadline for meet and confer is 30 days before the case management conference. With California's normal accelerated timeline for permitted requests for copy, inspections and productions, waiting until the last minute could get you into real sanctions trouble.

• There are provisions for judicial orders including protections for confidentiality of trade secrets and other restrictions on publication of commercial information. The rules contemplate reducing "embarrassment."

• "Translation" of data compilations from one format to another is necessary if the requesting party pays.

• California is serious about the safe harbor for inadvertent deletion. The provision is referred to several times throughout the amendments.

Texas - The Supreme Court of Texas found in In re Weekley Homes, L.P. , 2009 WL 2666774 (Tex. Aug. 28, 2009) that the trial court abused its discretion by ordering four of the defendant's employees to turn over their computer hard drives for forensic examination. This ruling underscores the presumption that inaccessible, particularly forensic, data should not be produced without a showing. In Texas, "direct access to another party's electronic storage devices is discouraged, and courts should be extremely cautious to guard against undue intrusion."

Other recent state-level changes (via Tom Allman) include:

Alaska - The Alaska Supreme Court has adopted comprehensive e-discovery rule amendments, which became effective on April 15, 2009. They include requirements of early disclosure and meetings to discuss ESI discovery (but not preservation) prior to a scheduling conference.

Iowa - The Iowa Supreme Court adopted Rule 5.502 to the Iowa Rules of Evidence based on Federal Rules of Evidence 502.

Maine - The Supreme Judicial Court of Maine adopted e-discovery amendments, effective August 1, 2009, based on the 2006 federal amendments. Minor corrections were quickly made with the same effective date. The Advisory Committee Notes are quite informative, especially in regard to defining "routine" and "good faith" in Rule 37(e).

New York - Legislative action was initiated on February 23, 2009 by Assembly Bill A06000 dealing with substantive issues, parallel to the federal amendments.

Tennessee - The Tennessee Supreme Court has adopted amendments to the Rules of Civil Procedure which were to become effective on July 1, 2009, "subject to approval by resolutions of the General Assembly." The rules are unique, and borrow from the Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information issued by the Conference of Chief Justices (2006).

Virginia - Effective January 1, 2009, the civil rules have been revised to include many, but not all of the provisions of the 2006 federal amendments, not including the safe harbor provisions and meet-and-confer obligations.

Wisconsin - The Wisconsin Judicial Council submitted a petition for an order adding a series of e-discovery amendments to the Wisconsin Statutes on April 23, 2009.

To learn more about which states have done what with regards to e-discovery, read Tom's update on Fios' website at http://www.fiosinc.com/case-law-rules/e-discovery-state-rules-civil-procedure. aspx.

Mary Mack, Esq., is Corporate Technology Counsel for Fios, Inc. She has more than 20 years' experience delivering enterprise-wide e-discovery, managed services and software projects with legal and IT departments in publicly held companies. Follow her on Twitter (@mackmary) and on her blog, Sound Evidence, on DiscoveryResources.org (www.discoveryresources. org).