In a move likely to be greeted as much with criticism as relief, the Pennsylvania Supreme Court recently adopted a very limited set of amendments to the Pennsylvania Rules of Civil Procedure that are expressly designed to make the eDiscovery process less complicated than in the federal system.
The amendments, which take effect on August 1, 2012, affect rules relating to document production—Pennsylvania Rules 4009.1, 4009.11, 4009.12, 4009.21, and 4009.23—as well as Rule 4011, which provides limitation of the scope of discovery. Although the language of the amendments mirrors the Federal Rules of Civil Procedure, by requiring production of documents in a “reasonably usable format,” the explanatory comment issued by the Supreme Court’s Civil Procedural Rules Committee notably declined to adopt federal jurisprudence on electronically stored information, or ESI.
In declining to adopt the federal standard, the Rules Committee noted that treatment of eDiscovery issues, as with all other discovery, “is to be determined by traditional principles of proportionality under Pennsylvania law.” As described in the explanatory comment, the “proportionality standard” governing discovery disputes requires a court to consider five factors in determining the scope of discovery:
- The nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake
- The relevance of the ESI and its importance to the court’s adjudication
- The cost, burden, and delay that may be imposed on the parties to deal with ESI
- The ease of producing ESI and whether substantially similar information is available with less burden
- Any other relevant factors
Equally important is that the amendments encourage the use of data sampling, electronic searching, cost sharing, and non-waiver agreements (which more easily allow parties to preserve the applicable privileges when a document is inadvertently disclosed) in order to “fairly allocate discovery burdens and costs.” The Supreme Court specifically advised parties to incorporate non-waiver agreements into court orders in order to ensure that third parties involved in discovery may receive as much protection as the parties in the case of inadvertent disclosure of privileged materials.
Less is more in the eyes of the Pennsylvania Supreme Court, at least with regard to eDiscovery. The Pennsylvania rules, unlike the federal rules, do not include an express provision for discovery of data “not reasonably accessible” or a safe harbor to protect parties against sanctions in the event of an inadvertent loss of data. Rather than promulgating a comprehensive set of new rules, the eDiscovery amendments reflect a view that cooperation, collaboration, and the use of technology are the best mechanisms for reducing the burden of eDiscovery on the parties and the court.
The court’s express distancing from federal eDiscovery jurisprudence and its emphasis on cooperation, proportionality, and agreement appears to reflect a belief among Pennsylvania lawyers and judges that federal eDiscovery law has become needlessly complicated and contentious.
Still, it remains to be seen whether expressly distancing federal jurisprudence will have a significant effect on the development of eDiscovery law in Pennsylvania. Parties will likely continue to cite federal cases in the Pennsylvania courts, particularly insofar as the new eDiscovery amendments closely mirror federal analogs. Many practitioners are also likely to question whether enacting fewer rules to govern the conduct of eDiscovery will make the discovery process in Pennsylvania courts less contentious than in federal or other state courts, or instead merely perpetuate the status quo.