Electronic Discovery Notes

Electronic discovery has been around for about five years now, but, as a Law Technology News article last week began, "Key to managing the risks and costs associated with electronic discovery in state court is resisting the common misunderstanding that each state has, at least in substantial part, followed the lead of federal courts… In fact, development of e-discovery rules in state court has been far from uniform, with the states pursuing a number of divergent paths to govern this burgeoning area."

"Generally, states have substantially adopted the Federal Rules of Civil Procedure; enacted a unique set of rules that are an amalgam of a variety of sources; or ignored the issue altogether," the article continued, "making an awareness of these rules before a dispute arises is essential." The balance of LTN’s article addresses examples of how states are approaching e-discovery in each of those three categories:

• California and approximately 21 other states have adopted a statute or rules governing e-discovery statute. Most of these states have generally followed the Federal Rules of Civil Procedure, though the specifics of each state's rules vary.



• New York, along with approximately seven other states, have charted their own paths for regulation of e-discovery.



• Illinois is among the approximately 20 states that have not yet adopted rules to expressly address e-discovery. However, the Illinois Supreme Court Rules do recognize "the increasing reliability on computer technology and thus obligate ... a party to produce ... materials which have been stored electronically." Ill. Sup. Ct. R. 201(b)(1) (cmt). Likewise, the comments to Rule 214, regarding discovery of documents, make clear that the definition of "documents" includes "all retrievable information in computer storage, so that there can be no question but that a producing party must search its computer storage when responding to a request to produce documents pursuant to [214]." Ill. Sup. Ct. R. 214 (cmt).

In an earlier article from last month, Connecticut's also not having e-discovery rules was examined, where courts have been applying existing statutes, rules, and causes of action to address e-discovery issues. That article, too, says the practice "raises significant questions."

Fios, an electronic service provider based in Portland, Oregon, and K&L Gates' Electronic Discovery blog have overviews of each state's provisions posted here & here, respectively.