Historically, Pennsylvania's rules of civil procedure had been silent on the handling of electronically stored information. The Pennsylvania Supreme Court, which had been considering proposed amendments to the rules since early 2011, with both the plaintiff and defense bars voicing their opinions on whether to adopt the federal standards on electronic discovery, has now amended the discovery rules to address the issue without adopting the federal rules.
On Wednesday, June 6, 2012, the Pennsylvania Supreme Court elected to amend the discovery rules to specifically address ESI under its own "proportionality standard." The e-discovery amendments will become effective on August 1, 2012: (1) As amended, Rule 4009.1 (which relates to the production of documents and things) will allow a party to request ESI and the format in which it should be produced. If no format is requested, the responding party may produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form; (2) The Supreme Court also amended the notes to Rule 4009.11 (which relates to requests for the production of documents and things) to encourage specificity in the ESI requested and collaboration between the parties on production formats and other related issues; (3) Rule 4011 (which relates to limitations on the scope of discovery) was amended to expressly include ESI.
Proportionality Standard Trumps the Federal Rules
Notably, the ideals of Pennsylvania's regulation of e-discovery matters appear to be similar to its established federal counterpart. However, explanatory comments to Pennsylvania's amended discovery rules articulate that “... there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information.” Instead, “[A]s with all other discovery, electronically stored information is governed by a proportionality standard ...”.
In assessing Pennsylvania's proportionality standard, the Commonwealth's high court has expressed that trial courts should consider:
- “(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.”
By contrast, Rule 26 of the federal rules mandates that a court must limit e-discovery if, inter alia, the ESI “can be obtained from some other source that is more convenient, less burdensome or less expensive” or if the burden/expense of the requested ESI outweighs its likely benefit when considering “... the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues.”
As such, both the Pennsylvania and federal rules appear to express that the extent of e-discovery used in any given lawsuit should be proportionate to the relief sought by the parties. However, Pennsylvania courts will be able to go beyond the considerations of the federal courts by evaluating the potential for delay as well as anything else that the parties may argue is relevant to a ruling on e-discovery matters.
Further, while Rule 26 of the federal rules requires that the parties confer and submit a discovery plan related to discovery, including the production of ESI, the amended Pennsylvania rules favor, but do not require, that the parties come to an agreement on e-discovery at the commencement of discovery practice. In doing so, the explanatory comments recommend that parties “consider” electronic searching, sampling, cost sharing, and non-waiver agreements, but do not require any party to do so.
Civility or Case Law?
In short, by expressly rejecting the federal rules on ESI, it appears that Pennsylvania's courts will primarily rely on the civility of counsel to establish self-imposed e-discovery limitations without judicial intervention. However, should the parties reach an impasse, state trial courts will be able to use discretion beyond that of their federal counterparts in resolving disputes over the production of ESI. With many commercial, financial and insurance entities moving toward a policy of paperless record retention, it is anticipated that the August 2012 implementation of the amended discovery rules will quickly result in case law clarifying how Pennsylvania's courts will confront the world of e-discovery.