Pennsylvania recently adopted amendments to its Rules of Civil Procedure that govern e-discovery practice in the Commonwealth. Although the amendments to Rules 4009 and 4011 (requests for production and the scope of discovery, respectively) use the federal term "electronically stored information," the Rules Committee specifically did not incorporate federal jurisprudence, and instead declared that "[e-discovery] is to be determined by traditional principles of proportionality under Pennsylvania law." Explanatory Comment A, Pa. R.C.P. No. 4009. Without the guidance of nearly a decade of e-discovery case law and detailed procedure under the federal rules, practitioners and their clients should be cautious regarding their obligations approaching and during litigation.
Pennsylvania is in the minority of states that do not adopt, in whole or in part, the federal rules governing e-discovery. As of February 2012, at least thirty states "based their new e-discovery rules on the [Federal Rules of Civil Procedure]."1 While Pennsylvania's new rules do not incorporate the entirebody of federal jurisprudence on e-discovery, practitioners will find the Rules' proportionality standard somewhat familiar. In deciding discovery disputes, courts in should consider:
1. the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;
2. the relevance of electronically stored information and its importance to the court's adjudication in the given case;
3. the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;
4. the ease of producing electronically stored information and whether substantially similar information is available with less burden; and
5. any other factors relevant under the circumstances.
These factors are actually quite similar to those governing the scope of discovery under the federal rules: the "needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake" and the "importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). Without an existing body of Pennsylvania case law to interpret the rules, federal case law will almost certainly be cited by litigants attempting to bring meaning to the new standard. The Explanatory Comment makes clear, however, that trial court judges are not bound by federal law when deciding any disputes over e-discovery.
The new rules provide standards for the Courts to resolve discovery disputes but leave litigants in Pennsylvania with almost no guidance on how to avoid such disputes entirely. The new rules do encourage cooperation amongst the parties, suggesting the use of "electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs." Explanatory Comment C, Pa.R.C.P. No. 4009. Unlike the federal rules, however, the Pennsylvania rules provide almost no instruction on how e-discovery should be handled. In seeking electronically stored information, the requesting party must be "as specific as possible" and may state the format in which the material is to be produced. Pa. R.C.P. No. 4009.1(b); Note, Pa. R.C.P. No. 4009.11. The other responding party may produce the material in that format or object to the request. Pa. R.C.P. No. 4009.1(b). If no specific format is requested, the producing party may use a "form in which [the information] is ordinarily maintained or in a reasonably useable form." Id. No other guidance is provided.
There is no standard in the rules with which parties can support their demands or objections during discovery. As a result, the parties may be less likely to reach agreement and more likely to seek intervention from the court. Moreover, there is no standard in the rules that provides consistent e-discovery procedures amongst the trial courts. Until a more extensive body of case law arises that interprets the new rules, each judge could be left to create his or her own procedure.
Pennsylvania has adopted a clean-slate approach to e-discovery and it will take time to develop jurisprudence that gives effective guidance to practitioners and the judiciary. The federal judicial system has spent almost ten years developing e-discovery principles since the Zubulake v. UBS Warburg decisions first addressed these issues. Fortunately, Pennsylvania can turn to an existing e-discovery practice nationwide that continues to evolve alongside new technology and methodology. As practitioners begin operating under the new rules, courts should build upon existing e-discovery scholarship to bring decisional clarity to the new Rules.2
Footnotes
1 Thomas Y. Allman, E-Discovery in Federal and State Courts after the 2006 Federal Amendments 3 (Feb. 9, 2012), available at http://www.krollontrack.com/publications/2012%20fed%20state%20ediscovery%20rules.pdf?utm_source=ED&utm_medium=Email&utm_campaign=ED-Rediscovered-2012-02-15-ExternalWebinarFup&utm_content=download.
2 For example, in 2010 the Sedona Conference offered its "Commentary on Proportionality in Electronic Discovery," including commentary on the Federal Rules. Dave Walton, co-chair of Cozen O'Connor's E-Discovery Task Force, contributed to the dialogue as the Conference was drafting its Commentary. You can review a copy here.
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