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On June 6, 2012, the Pennsylvania Supreme Court announced the
adoption of new procedural rules to regulate the e-discovery
process. Order No. 564 (Pa. 2012). The new rules, effective August
1, 2012, provide that discovery of electronically stored
information ("ESI") should be guided by principles of
proportionality and facilitated through cooperation among
parties.
The Order amends Rule 4009.1 of the Pennsylvania Code to include
ESI as a distinct category of discoverable information, and
provides guidance about its production:
A party requesting electronically stored information may specify
the format in which it is to be produced and a responding party or
person not a party may object. If no format is specified by the
requesting party, electronically stored information may be produced
in the form in which it is ordinarily maintained or in a reasonably
usable form. 17 Pa. Code § 4009.1(b)(2012).
The rule is now substantially similar to Federal Rules of Civil
Procedure Rule 34(b)(2)(D). In a note to Rule 4009.11, the court
instructs parties to make ESI requests "as specific as
possible" and encourages "limitations as to time and
scope," as well as voluntary discovery agreements between
parties.
The Civil Procedural Rules Committee's Explanatory Comment
cautions that, although the amendments incorporate elements of the
federal rules, the move signals "no intent to
incorporate" the attendant federal jurisprudence. Instead, the
new rules and comments emphasize the need for proportionality in
the name of "just, speedy and inexpensive" resolutions at
trial. Thus, in evaluating ESI requests, courts are instructed to
focus their analyses on (1) the nature and scope of the litigation,
(2) the relevance of the ESI and its importance to successful
adjudication, (3) the cost and time burdens associated with
producing the ESI, and (4) the relative "ease of
producing" the ESI and whether some adequate substitute would
be sufficient, among other factors. CPRC Explanatory Comment §
B.
The Pennsylvania rules do not include counterparts to all of the
federal rules relating to e discovery. Reed Smith Records &
E-Discovery Practice Group Leader David Cohen, who served on the
subcommittee that drafted the rules, noted that was quite
intentional. "The majority of cases on Pennsylvania county
court dockets don't require broad e-discovery, and there was
sensitivity to not imposing extra procedures or burdens that may
not be needed in most state court cases." In opting for fewer
rules and procedures than the federal courts have adopted, the
subcommittee leaned significantly on the experience and expertise
of the Subcommittee Chair, the Honorable Judge R. Stanton Wettick
of the Allegheny County Court of Common Pleas. Judge Wettick has
presided over the discovery process for the second-most active
docket in Pennsylvania for more than 30 years. In addition to
Wettick and Cohen, other members of the e discovery subcommittee
included Laura Ellsworth and Matthew Divelbiss of Jones Day, and
Jack Stover and Jayson Wolfgang of Buchanan, Ingersoll &
Rooney.
Notably, the rules do not mandate that parties meet prior to
discovery to come to terms on a uniform protocol for
e-discovery—as does FRCP Rule 26(f)—nor do they
adopt any new provisions comparable to FRCP Rule 37(e)'s
"Safe Harbor" provision, which discourages sanctions for
the loss of ESI "as a result of the routine, good-faith
operation of an electronic information system." Judge Wettick
noted that no similar state rule is needed, because routine
good-faith actions should not expose parties to sanctions in any
event.
With these amendments, Pennsylvania becomes the 36th state to
adopt procedural rules specific to e-discovery. Twenty-nine of
those states enacted rules substantially similar to the 2006
Federal Rules amendments. Notably, Pennsylvania is only the seventh
state to adopt e-discovery rules that do not predominantly follow
the 2006 Federal Rules amendments.
This article is presented for informational purposes only
and is not intended to constitute legal advice.
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