State Level Electronic Discovery

With all of the excitement, or maybe trauma, over electronic discovery this past year, one might assume that EDD’s something reserved for massive litigation or federal cases alone. That’s not the case, as Brett Burney in a Law.com article yesterday morning conveys.

“Prior to Dec. 1, 2006, when the amended Federal Rules of Civil Procedure went into effect, parties in federal courts worked under the general assumption that e-mails and electronic documents were covered under an expanded definition of ‘documents.’ The word ‘documents’ in the pre-amended FRCP was liberally applied to both tangible paper and intangible digital files, he says.

“Similarly, state courts have allowed e-mail and electronic files to pass as ‘documents’ so they are equally as discoverable as pieces of paper.” Then Texas upset the cart in 1999 adopting perhaps the first state-level bit of EDD.

“Not many of the states have followed Texas’ lead,” the article continues, “but within the last few years the states have realized they need to make adjustments to their civil procedure rules to ensure they are applicable in the real world today..”

Mr. Burney relates that Arizona, Indiana, Louisiana, Minnesota, Montana, New Jersey, and Utah have all amended their respective rules to include FRCP-like provisions; 14 other states, including Ohio, are in the process of considering like amendments.

Burney introduces us to K&L Gates’ Electronic Discovery Law blog, which, indeed, has a wealth of information, including links to all of the states & district courts having rules or guidelines to electronic discovery, and the Sedona Conference, which has been at the forefront of this evolution since 2003. ( i.e, “Principles of Addressing Electronic Document Production” )( Full list of commentaries )


The Federal Judicial Center, National Conference of Commissioners on Uniform State Laws, and National Center for State Courts all have resources on electronic discovery at the state level.