Friday, October 19, 2007

State Level e-Discovery Rules

Sedona Conference director of education & content, Ken Withers, commented in last week’s National Law Journal that “attorneys will have to get up to speed with electronic discovery,” and that if they thought they were going to be able to avoid it simply by staying out of the federal courts, “they’re going to have to think again quickly.”

Following the Federal rules, which kicked in Dec. 1, 2006, the article equates electronic discovery rules being adopted in Idaho, Indiana, Minnesota, Montana, New Hampshire and New Jersey. Arizona has rules which will become effective in January, and Maryland, Nebraska and Ohio have rules proposed.

The Ohio Supreme Court has amendment proposals to several sets of court rules including:

Both Criminal and Civil Procedures, including Civ.R. 16, 26, 33, 34, 36, 37, and 45 based on
amendments made to the Federal Rules of Civil Procedure, and CrimR. 10, accommodating electronic information. (Comments on those proposals are being accepted until November 14, 2007)

Lawyers, however are still predicting litigation backlashes due to state quirks and loopholes, the article says, and practitioners are going to have to deal with price tags on things like producing electronically stored documents and finding experts on “long-obsolete programming languages.”

A recent article, too, posted e-discovery storm warnings, in a look at the order issued by Central California District Magistrate Jacqueline Chooljian requiring TorrentSpy to turn over data “only ephemerally kept on its computers’ RAM.”

Finally, The National Center for State Courts has a set of “Guidelines for State Trial Courts Regarding Discovery of Electronically-stored Information” on their website., which might provide some help in understand all of this.