On June 6, 2007, the Pennsylvania Supreme Court amended Pennsylvania’s Civil Rules to address eDiscovery. Specifically, the Pennsylvania Supreme Court amended Rule 4009.1 to include ESI within its scope and to allow a party requesting the production of ESI to “specify the format in which it is to be produced,” and a responding party to object to such production. In addition, the default standard for production of ESI if no format is specified is “in the form in which it is ordinarily maintained or in a reasonably usable form.” Moreover, under the amended Rule 4009.1, a “request seeking electronically stored information should be as specific as possible,” and “limitations as to time and scope are favored, as are agreements between the parties on production formats and other issues.”
In the explanatory comment regarding ESI, the new Pennsylvania rules make clear that “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information” and that “treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law.” This standard requires the court to consider: (1) the nature and scope of the litigation; (2) the relevance of the ESI and its importance to the case; (3) the cost, burden and delay in dealing with the ESI; (4) the ease of producing the ESI and the availability of substantially similar information that can be produced with less burden; and (5) any other factors relevant to the particular situation. The explanatory comment also discusses tools for electronic searching, sampling, cost sharing and non-waiver agreements (which the Rules Committee advises should be included in court orders to maximize protection vis-à-vis third parties).
A copy of the Amended Rules and the Explanatory Comment can be found here.