Mining E-Discovery Stateside
Law Technology News, January 18, 2008
The electronic discovery amendments to the Federal Rules of Civil Procedure have been well documented and discussed but similar changes to various state rules have flown under the radar thus far. As with many procedural and substantive legal issues, states vary widely in what they require. Brett Burney from Law Technology News notes, “the states have realized they need to make adjustments to their civil procedure rules to ensure they are applicable in the real world of today.” Burney goes on to say that states have taken different approaches to electronic discovery but half have not had any formal changes around e-discovery.
Lawyer Thomas Allman, co-chair of the E-Discovery Committee of the Lawyers for Civil Justice and member of the Steering Committee of the Sedona Conference, has counseled many states about how to incorporate rules on electronically stored information (ESI). According to Allman, seven states have adopted the FRCP amendments in whole or in large part and another fourteen are currently considering similar changes to their rules. Texas was at the forefront of e-discovery in 1999 when it created a rule that “to obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request [it[ and specify the form in which the requesting party wants it produced.” Though initially ahead of the e-discovery curve, the state has not gone any further in its ESI rules. Similarly, Idaho and Mississippi have recognized ESI but have not created further rules to govern its use.
The upshot of Burney’s article is that state rules about ESI and e-discovery vary greatly and attorneys and organizations can’t rely on a state having rules similar to those of the FRCP. This will continue to be a hot topic in coming years and we expect to see more discussion and debate on how states are handling ESI.