Jun 08, 2012
The Pennsylvania Supreme Court has adopted changes to state e-discovery rules
The Pennsylvania Supreme Court has adopted changes to the rules on how e-discovery is handled in the state, expressly rejecting an adoption of federal law.
While the state Supreme Court was mulling whether to approve or reject the proposed changes last year, many of the state's defense lawyers said specifically rejecting the federal rules would move the state in the wrong direction. Plaintiffs lawyers and members of the court didn't see it that way. But now it appears that, while stating an intention to reject federal law, the new rules and comments are quite similar to certain federal guidelines.
The question some attorneys have is whether they go far enough.
According to the explanatory comments on the rule changes, the chairwoman of the state Civil Procedural Rules Committee said, "Though the term 'electronically stored information' is used in these rules, there is no intent to incorporate the federal jurisprudence surrounding" e-discovery.
"The treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law," Chairwoman Diane Perer said in the comment.
In Rule 4009.1, regarding the "production of documents and things," the court added the phrase "electronically stored information" to the list of items a party may request. It also added a subsection that a party requesting ESI "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 requested, the ESI can be produced in the form in which it is typically maintained, the rule states.
In a note to Rule 4009.11 regarding the request for production of documents and things, the court said a request for ESI should be "as specific as possible."
"Limitations as to time and scope are favored, as are agreements between the parties on production formats and other issues," the note said.
In the explanatory comment to the note, the court outlined the proportionality standard and what judges need to do in applying the standard. The standard requires courts to consider the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; the relevance of ESI and its importance to the adjudication of a case; the cost, burden and delay that may be imposed on the parties to deal with the ESI; the ease of producing the ESI and whether less burdensome means are available; and any other factors relevant to the situation, according to the explanatory note.
"Parties and courts may consider tools such as electronic searching, sampling, cost sharing and non-waiver agreements to fairly allocate discovery burdens and costs," the note continued. "When using non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties."
Ballard Spahr's Philip Yannella said there is tension between the language in the comment and what the new rules actually require. He said the rule detailing how ESI is to be produced sounds almost verbatim to the federal rule and the proportionality standard outlined in the comment is also very similar to the federal proportionality rules. Yannella said most federal courts stress proportionality above all other principles of e-discovery.
Yannella said he thinks the express rejection of federal jurisprudence is more a statement from the Pennsylvania Supreme Court that it wants parties to negotiate and cooperate and doesn't want a lot of unnecessary motions on discovery issues. He said that doesn't mean parties won't cite federal case law on e-discovery issues when appropriate.
Yannella said the new rules are not a seismic shift, but said they do provide guidance where there was none before. He said the comments as to proportionality were a bit more helpful than the rule changes themselves.
"So on the whole, I do think that the new rules are helpful," Yannella said. "The express disavowal ... of federal jurisprudence, I question whether that is going to mean that much in practice."
Montgomery McCracken Walker & Rhoads attorney Michael Hayes said that while the rules look favorably on the parties reaching an agreement on e-discovery, they don't go far enough. In federal court, he said, parties must meet and confer about e-discovery and must submit a report to the judge on how discovery will be handled.
Even the most routine disputes now often involve e-discovery and the state rules allow for abuses of the process, he said.
"There's no teeth to this tiger," Hayes said.
Leonard Deutchman, general counsel of LDiscovery and a columnist for Legal affiliate Pennsylvania Law Weekly , said the new rules don't adopt federal principles that not only give guidance to litigants, but go a step further in proscribing how specifically e-discovery should be handled.
"It does not preclude a court from following those federal procedures, but if you were to demand of a litigant to 'show me where in the rules it says that the producing party must produce X, Y and Z in this way or that,' these rules don't go toward answering that question," Deutchman said. "Or, specifically, these rule changes avoid putting those requirements in."
By making it a requirement that the requesting party be as specific as possible, but not giving them a mechanism for how to do that, it puts the requester in a "conundrum," he said.
"State courts are institutionally not nearly as capable of dealing with e-discovery issues as the federal courts," Deutchman said, adding they don't have as many clerks or magistrate judges to turn to.
By not giving a specific checklist, courts will have to make up e-discovery procedures as they go along, he said.
Federal v. State
In a note along with the proposed changes, the committee had said the purpose of the changes was to allow Pennsylvania to adhere to a proportionality standard "and not pursuant to the Federal Rules of Civil Procedure and the frequently intricate case law developing in the federal courts."
The thinking there, some lawyers said, was that the state's courts don't deal with the complex cases that arise in the federal courts and don't often get weighed down with discovery issues.
Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. led the committee's initiatives in drafting the rule changes. He handles his court's complex litigation center. He told The Legal last year that a lot of the people against the proposed rule changes are e-discovery lawyers who don't get much work in Pennsylvania under the current or proposed framework.
But Wettick said a number of other lawyers had told the committee they try to avoid federal courts because of e-discovery concerns.
"If you're focusing on proportionality, then you don't get into all sorts of other things," Wettick said. "We don't want 90-page opinions that guide discovery because it's going to be too complicated."
He said there is a sense that the first thing a client needs to do when sued in federal court is hire an e-discovery lawyer. He said it becomes self-perpetuating. If the system becomes so refined that an ordinary lawyer can't handle it, then "something is wrong with the system," Wettick had said.
"In federal courts, the bible has been written by people who aren't even judges, they're magistrate judges," he had said. "And if that is the model they want or we need — 90-page opinions to talk about something — it's not a very good model."
State courts should be talking to the parties about what each side needs, what are the burdens of getting the information and whether there is a less burdensome way, he said.
Wettick had said the meet-and-confer conferences provided for under the federal rules requiring parties get together early on just force the issue.
"So suddenly you are having battles that might never come up," he had said.
Wettick went back to the proportionality standard, saying a $250,000 case should be treated differently from a $750 million case.
Daniel J. Sherry Jr. of personal injury firm Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck said last year that the proposed rules keep the discretion over e-discovery where it needs to be: in the trial court and among the parties.
"I also like that Pennsylvania, which in the past has been very accommodating in terms of allowing broad discovery, is going to keep an independent stance on the issue [and] won't bring in federal law," Sherry had said. "With federal rules, constantly in the federal court you see other courts and circuits cited by parties attempting to get documents or prevent disclosure, and the [state] court, I think, quite wisely has cut that off at the knees by saying, 'We're not looking at it,' [and will instead develop] its own body of case law."
Sherry had said he is all for proportionality, which he said has always been the standard.
Gina Passarella can be contacted at 215-557-2494 or at firstname.lastname@example.org. Follow her on Twitter @GPassarellaTLI.
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