State courts adapting to e-discovery in varying ways

While lawyers struggle with the new electronic discovery amendments to the Federal Rules of Civil Procedure, state courts are facing similar problems.
To date, few states have rules in place that directly address e-discovery, and the handful that have adopted rules haven’t taken a uniform approach.
“It’s kind of a quagmire right now,” said Michael Arkfeld, a Phoenix, Ariz. consultant and e-discovery educator.
The primary reason for the different pace between the federal and state courts is financial, said Kenneth J. Withers, the director of judicial education and content at the Sedona Conference, a non-profit organization in Phoenix, Ariz. that works to advance law and policy in specific areas like electronic discovery.
“As a general rule, state judicial systems don’t have the resources available for judicial education like the federal system has,” he said. “It’s not because state court systems aren’t concerned, interested or willing – they just don’t have the resources.”
But while the states play catch-up to the federal system, attorneys still need to get prepared, warned Michele Lange, a staff attorney at Kroll OnTrack, an Eden Prairie, Minn. computer forensics company that specializes in electronic evidence.
“Lawyers need to research what the rules in their state are, as well as what the judge’s position is on the topic,” she advised.

State by state
Currently, just four states have rules in place that explicitly address electronic discovery: Idaho, Mississippi, New Jersey and Texas.
In addition, the North Carolina business court division has its own e-discovery rule and the U.S. District Courts in Kansas have posted a set of guidelines on their website for both state and federal courts – what amounts to a “best practices” standard, Withers said.
While New Jersey, the most recent to pass e-discovery rules, mimicked the Federal Rules, the other states have taken varied approaches.
Texas, which passed its e-discovery rules in 1996, has a two-tier system that looks at the accessibility of the information and provides for cost-shifting, a precursor to Federal Rule 26(b)(2).
Mississippi, the second state to adopt rules, closely mirrored Texas, while Idaho, where new rules went into effect last summer, tracked the Federal Rules but excluded new Rule 37(f) – the so-called “safe harbor” that says courts may not impose sanctions for the failure to preserve electronically stored information.
Withers also noted that Arizona, Maryland and New Hampshire are in the process of considering rules changes, and that California recently considered amendments, but failed to pass them.
The scattered passage of laws can be attributed to either individuals in a given state who push for change, or a response to a specific case that garnered publicity and brought attention to the issue, Withers said.
“The pattern we find going across the country is that rules are cropping up in all sorts of unusual places and the response has been spotty,” he said.

Uniformity possible?
Some parties are advocating a uniform system of state court rules on electronic discovery.
Prior to the passage of the e-discovery amendments to the Federal Rules of Civil Procedure, the Sedona Conference issued its Sedona Principles, or “Best Practices Recommendations & Principles for Addressing Electronic Document Production.” Several courts have cited the 14 principles, which emphasize the importance of proper document management policies and encourage early discovery discussions.
Last August, the Conference of Chief Justices released a 20-page guide for state trial courts addressing the issue of e-discovery. The guidelines were intended to help trial judges identify the relevant issues in e-discovery disputes, but not to be used as model rules. They define relevant terms and discuss topics such as the scope of electronic discovery, the format of production, cost allocation and inadvertent disclosure.
The National Conference of Commissioners on Uniform State Laws is also in the process of creating a uniform, multi-jurisdictional set of guidelines for states to consider adopting, but the rules are currently in the drafting and public comment stage.
(All of these guidelines and recommendations can be accessed in the “Important Documents” section of Lawyers USA’s website: www.lawyersusaonline.com.)
The Uniform Commissioners’ version closely mirrors the Federal Rules. The main difference is that “it leaves a lot of discretion to judges to determine which kinds of cases these rules should apply to,” and allows courts to exempt certain types of cases, Withers said.
Despite all this activity, many experts see the push for uniformity as an uphill battle.
“The way that civil procedure rules are promulgated are different from state to state,” Lange explained. “In some states, the highest court dictates rules, in others a committee creates rules, and in some it takes the action of the legislative body,” which creates different results.
And having states simply adopt the new federal amendments isn’t as simple as it sounds, Withers said.
That’s because the Federal Rules underwent changes in 1993 and 2000, few of which were adopted wholesale by state courts.
“So to ask states to adopt the 2006 amendments means having to leapfrog from roughly 1983 – the last set of amendments adopted almost uniformly – to 2006, and states would have to catch up with 23 years of amendments in order to come into line with federal rules and be uniform,” he said.
Because of this, Withers predicted that states will always differ even though they will inevitably have to address electronic discovery.
Experts agree that the ubiquity of electronic discovery will force action in the states, as has already occurred in federal court.
“In federal court, we had contentious litigation which gave rise to the discussion of electronic discovery issues,” Lange said. “And with the continuing digitization of our society, that effect will filter into state litigation.”