Tuesday, January 25, 2011

Proposed Pennsylvania E-Discovery Rules

Just last month I commented: "In Pennsylvania, we don't have e-discovery rules... we have discovery rules applied to electronically stored information." Well, that's all set to change (sort of) under proposed e-discovery rules from the Supreme Court of Pennsylvania Civil Procedure Rules Committee. A copy of the proposal is available here.

Most of the proposals are rather unremarkable. For example, Electronically Stored Information (ESI) is expressly added to "Documents and Things" subject to Requests for Production. The format may be requested and objected to, and if not specified may be produced "in the form in which it is ordinarily maintained or in a reasonably usable form." (suspiciously similar to the fed rules). A note provides that ESI requests "should be as specific as possible" and "Limitations as to time and scope are favored."

Pretty dull stuff, but as the preface emphasizes, "the core of the proposal is an explanatory comment." That comment expressly rejects the incorporation of federal e-discovery jurisprudence in favor of retaining the traditional proportionality discovery principles under Pennsylvania law. That standard is stated as:
(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;
(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;
(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;
(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and
(v) any other factors relevant under the circumstances
If the rules are enacted it will be interesting to see how Pennsylvania law departs from federal law in e-discovery.

Major HT to my McQuaide Blasko colleague, Jon Stepanian, who has great coverage of this topic on Defense of Medicine: Pennsylvania Considers Electronic Discovery Rules.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.