When discovery first met the “e-“ that precedes it today, it fell upon trial judges nationwide to figure out how to harmonize primordial sources of electronically stored information (ESI) with traditional discovery rubrics—essentially, how to fit a round peg into a square hole. However, the landscape has adapted. Today, state and federal rulemaking bodies have formed a constellation of e-discovery frameworks that play a paramount role in civil litigation.
Origins of e-discovery rulemaking in the U.S.
Flooded with requests to produce ESI and incongruent rules, state rule makers in the late 1990s needed a hard and fast way to make ESI discoverable. In 1999, Texas was the first state to adopt a rule that contemplated e-discovery by adopting Texas Rule of Civil Procedure 196.4, which mandates a shift of cost to the requestor of inaccessible ESI.
While some states have followed in Texas’ footprints, an influx of state rule changes came in the wake of the 2006 amendments to the Federal Rules of Civil Procedure. The Federal Rules approach tackles e-discovery by listing ESI, in Rule 34, as a discoverable source of information, and also addresses ESI throughout rules 16, 26, 34 and 37. As noted by Thomas Y. Allman in his 2012 article “E-Discovery in Federal and State Courts after the 2006 Federal Amendments,” today:
- 30 states follow the Federal Rules approach in whole or in part
- Texas, Idaho and Mississippi follow an embodiment of the Texas rules approach
- Other states take different approaches that don’t necessary include legislative action
An atlas of state rules
While the objective of state e-discovery rulemaking is to make ESI a discoverable source of information, the legal community is constantly exploring how to further streamline e-discovery practices. The result is a vivid tapestry of state rules that tackle the core principles of e-discovery as follows.
Proportionality. States widely adopt variants of Federal Rule 1 (“These Rules . . . should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding”) and Federal Rule 26(b)(2)(C). For example, Tennessee Rule of Civil Procedure 26.02 provides that the frequency or extent of use of discovery methods shall be limited by the court if it determines that discovery is unduly burdensome or expensive, considering the needs of the case and amount in controversy. Furthermore, examples of federal proportionality case law—including the landmark opinions Orbit One Commc'ns, Inc. v. Numerex Corp. and Pension Comm. v. Banc of Am. Sec., as well as the head-turning February 2012 decision, Pippins v. KPMG LLP—serve as a baseline for states to balance production costs and their likely benefit.
Early Cooperation. Different states impose different requirements on practitioners regarding what communication is required prior to their initial discovery conference with the court. Some states follow the federal approach, mandating parties to meet and develop a proposed discovery plan that addresses format of production and discovery of ESI.
Other states (Arizona, for example) only require early discussion in complex cases , cases within the purview of business courts, or pursuant to court order. The Sedona Conference’s “Cooperation Proclamation” is one of many sources that urge legal practitioners to become familiar with opposing counsel – or at least their ESI.
Preservation Obligations & Litigation Holds. Frequently, in lieu of an explicit duty to preserve, state rules broadly mandate discussion of preservation issues at the brink of discovery and offer a safe harbor for good faith retention at the back-end. Absent a concrete rule, states often look to federal opinions like Pension Committee for guidance. Front-page, counsel-crushing spoliation sanctions can ultimately be avoided by attorneys and parties who cast a wide evidentiary net and abide by the duty to preserve.
Breaking the mold: States tackling tomorrow’s issues today
Uniformity across state, as well as federal e-discovery rules, leads to more available precedent, predictable outcomes and lower costs. However, there is an innate concern that strict, homogenous adoption could impede vital e-discovery evolution.
To date, several states have transcended the 2006 Amendments with dynamic e-discovery regimes that could potentially serve as examples for other states and perhaps for future amendments to the Federal Rules. For example, in 2011, Utah enacted new Utah Civil Procedure Rule 26, which addresses concerns about the costs of production and directly addresses proportionality as it places the burden on the requesting party to determine proportionality as a predicate to production.
Of course, state rules cover much smaller jurisdictions than the Federal Rules and can be amended relatively quickly. In 2012, as trade conferences, webinars and blog posts churn over the viability of potential preservation and spoliation amendments to the Federal Rules, the time is ripe to consider the role of states in e-discovery rule development—resilient adopters or trail-blazing innovators—or perhaps a bit of both?