Pennsylvania practice has always possessed an old-timey charm. Pennsylvania doesn’t have “Clerks of the Court.” It has “Prothonotaries.” Pennsylvania attorneys don’t “Notice” a motion. They file “Praecipes.” And Pennsylvania takes pride that its Supreme Court dates back to 1722, making it 67 years older than SCOTUS.
But times change, and technology with it. Over the past twenty years, many of those changes have been bad for Pennsylvania employers. The growth of e-mail, for instance, has exploded discovery costs. This often makes it impractical to defend cases on the merits. Similarly, employers can face a Hobson’s choice between paying a fortune to preserve ever growing amounts of data, or risking serious spoliation sanctions. At the same time, employers typically haven’t had great success in forcing plaintiffs to accept technological changes that expedite discovery and simplify litigation.
But, in Pennsylvania at least, there may be some good news. In late-October, the Pennsylvania Supreme Court updated the Pennsylvania Rules of Professional Conduct to account for modern technology, such as electronically stored information. Among other things, the new rules:
- Require attorneys, as part of their obligation to “keep abreast of changes in the law and its practice,” to study “the benefits and risks associated with relevant technology.” (Rule 1.1, Comment 8)
- Assess an attorney’s “reasonable efforts” to keep information confidential through factors such as “the sensitivity of the information,” “the cost employing additional safeguards,” and “the extent to which the safeguards,” such as “a device or important piece of software,” serve to “adversely affect the lawyer’s ability to represent clients.” (Rule 1.6, Comment 25)
- Oblige an attorney to notify the sender when the attorney receives electronically stored information (including metadata) that he or she should reasonably know was inadvertently produced. (Rule 4.4 & Rule 4.4, Comment 2)
- Recognize that attorneys may need to retain document management companies to assist with complex litigation and e-discovery. (Rule 5.3, Comment 3)
- Make clear that a person who sends “an unsolicited e-mail or other communication” to an attorney “unilaterally” is not a “prospective client,” and thus is not protected by the attorney-client privilege. (Rule 1.18, Comment 2)
The Penn is Mightier Than the Status Quo: Prior e-Discovery Reforms
Pennsylvania’s new rules track amendments that the American Bar Association made in 2012 to its Model Rules of Professional Conduct. But they also follow on the heels of Pennsylvania’s decision last year to implement specific e-discovery rules. Those changes included adopting an express “proportionality standard” for all discovery, including e-discovery, and advising parties to consider “electronic searching, sampling, cost sharing, and non-waiver agreements [covering the attorney-client privilege].” (Pa. R. Civ. P. 4009 Explanatory Comment) And just a few weeks ago, the First Judicial District began releasing electronic discovery in criminal cases over an e-filing system. Accordingly, the revisions to the Rules of Professional Conduct reflect an on-going effort to modernize Pennsylvania practice.
From Penn to Paper to Practical Practice?
What will this mean to employers litigating in Pennsylvania courts? Until courts start ruling, it’s hard to predict. But, at a minimum, the new rules should give employers additional ammunition to push for using the latest cost-saving technology, such as predictive coding, when defending against litigation in Pennsylvania courts. After all, the requirement that attorneys “keep abreast” of new technology should make it more difficult to plead ignorance of innovative methods for reducing costs. Similarly, the new rules on inadvertent disclosure, and the earlier endorsement of non-waiver agreements, offer employers extra tools to protect privileged material.
As a practical matter, however, the effects may be limited. For instance, the new rules expressly exclude a plaintiff’s unsolicited, unilateral emails to attorneys from the privilege. Thus, in theory, these communications should be great fodder for discovery in single-plaintiff discrimination cases. But collecting these emails may prove challenging. In most cases, compliance will depend upon plaintiffs honestly and thoroughly searching their personal emails. Yet employers, and their counsel, usually will have no way to know what plaintiffs omit or destroy. Likewise, many judges handle dozens of motions each day, which may limit their time and resources to consider the many complicated issues often raised in e-discovery motions.
Still, Pennsylvania’s recent reforms are certainly positive. Technology definitely has a friend in Pennsylvania. And that should be good for Pennsylvania’s employers.