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State eDiscovery Rules

Society is going digital. From plain old computers, to the web, now social media and on to a future of IoT (Internet of Things) and VR (Virtual Reality), more and more of our lives are playing out online. To keep up, the legal system is adapting and coming up with procedures to deal with all this digital data; eDiscovery.

eDiscovery refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.

This guide walks you through the different State eDiscovery rules. Most State rules are based on principles of the FRCP: (Federal Rules of Civil Procedure):

Federal Rules of Civil Procedure

Any and all nonprivileged information relevant to the parties’ claims and defenses (and in some circumstances, the subject matter of litigation) must be produced if responsive to particularized requests. As a result, parties are required to take as soon as litigation is reasonably anticipated, necessary steps to preserve potentially relevant data – including suspending the operation of at least some, if not all, routine electronic data deletion systems.


US Map

Alabama

Effective February 1, 2010, the Alabama Rules of Civil Procedure were amended to provide for and accommodate electronic discovery practice. The revisions are modeled on the Federal Rules of Civil Procedure.

Rules of Civil Procedure

Rule 16 Pre-trial conferences; scheduling; management.
Rule  26 General provisions governing discovery.
Rule 33 Interrogatories to parties.
Rule 34 Production of documents and things and entry upon land for inspection and other purposes.
Rule 37 Failure to make discovery: Sanctions.
Rule 45. Subpoena.
Form 51A

Rule of Evidence 510 Waiver of privilege by voluntary disclosure.

Alaska

The Supreme Court of Alaska approved amendments that address ediscovery. The amendments to Alaska’s Rules of Civil Procedure are analogous to the Federal Rules of Civil Procedure and include a mandatory meet and confer provision. The amendments went into effect on April 15, 2009.

Rules of Civil Procedure

Rule 16 Pretrial Conferences; Scheduling; Management (Effective April 15, 2009)
Rule 26 General Provisions Governing Discovery; Duty of Disclosure  (October 15, 2014)
Rule 33 Interrogatories to Parties  (Effective April 15, 2009)
Rule 34 Production of Documents, Electronically Stored Information, and Things, and Entry Upon Land for Inspection and Other Purposes (Effective April 15, 2009)
Rule 37 Failure to Make Disclosure or Cooperate in Discovery: Sanctions  (Effective April 15, 2009)
Rule 45 Subpoena  (Effective April 15, 2009)

Arizona

Arizona has adopted provisions similar to the Federal Rules of Civil Procedure Amendments. Effective January 1, 2009, Arizona amended its Arizona Rules of Family Law Procedure that are based on the Arizona Rules Civil Procedure and address ediscovery issues.

Arizona has also adopted Arizona Rule of Evidence 502 in January 2010 to address a disclosure of a communication or information covered by the attorney-client privilege or work product protection.

Rules of Civil Procedure for the Superior Courts of Arizona

Rule 16 Pre-trial conferences; scheduling management
Rule 16.3  Initial Case Management Conference in Cases Assigned to the Complex Civil Litigation Program
Rule 26 (b)  Discovery Scope and Limits
Rule 26.1  Prompt Disclosure of Information
Rule 26.2  Exchange of Records and Discovery Limitations in Medical Malpractice

Cases

Rule 33  Uniform and Non-uniform Interrogatories; Limitations; Procedure
Rule 34  Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes
34(a) Scope
34(b) Procedure and Limitations
Rule 37(g)  Electronically stored information
Rule 45 Subpoena
Rule 45.1 Interstate Depositions and Discovery (effective January 1, 2013)

Rules of Family Law Procedure

Rule 49 Disclosure
Rule 51 Discovery
Rule 52 Subpoena
Rule 62 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
Rule 65 Failure to Make Disclosure or Discovery; Sanctions

Justice Court Rules of Civil Procedure

Rule 122 General provisions regarding discovery.
Rule 125 Request for production of documents, electronically stored information, and things; request for entry upon land for inspection and other purposes.
Rule 127 Discovery violations.
Rule 131 Pretrial conference; settlement conference.
(Effective January 1, 2013)

Rules of Evidence

Rule 101 Scope; Definitions
Rule 502 Attorney-Client Privilege and Work Product; Limitations on Waiver

Rule 1001 Definitions that Apply to This Article

Arkansas

On September 24, 2009, the Supreme Court of Arkansas adopted Rule 26.1 to the Arkansas Rules of Civil Procedure. Rule 26.1 is a comprehensive ediscovery provision that addresses many topics such as early conferencing, accessibility of data and form of production. The Rules of Civil Procedure also include Rule 26(b)(5) which addresses inadvertent disclosure.

Rule of Evidence 502(f) was also adopted by Arkansas. According to the Explanatory Note for Arkansas Rule of Evidence 502: “Under new subspanision (f), disclosure of information covered by the attorney-client privilege or the work-product doctrine to a government agency conducting an investigation of the client does not constitute a general waiver of the information disclosed.”

Rule 26 General Provisions Governing Discovery

Rule 26.1 Electronic Discovery

Ark. R. Evid. 502. Lawyer Client Privilege

California

In 2009 the California Code of Civil Procedure was amended by the Electronic Discovery Act to address the discovery of electronically stored information.  In 2012, additional amendments addressing electronic discovery were adopted and became effective on January 1, 2013.

The Electronic Discovery Act of 2009

Senate Bill 1574, Discovery; electronically stored information (adopting the 2013 amendments)

The California Code of Civil Procedure  (Civil Discovery Act, Part 4, Title 4).

Rule 3.724 Duty to meet and confer

State Bar of California e-Discovery Pocket Guide

Colorado

On January 25, 2008, the Colorado Supreme Court Committee on Rules of Civil Procedure held a meeting at which the Committee approved a motion to not attempt to make changes to the Colorado Rules of the Court that would mirror the amendments to the Federal Rules of Civil Procedure.

Colorado Rule of Civil Procedure 16 Case Management and Trial Management

Civil Access Pilot Program Rules (see, Rules 1.3, 6.1, 6.2 & Appendix B)

Connecticut

Connecticut adopted ediscovery amendments to the Connecticut Practice Book in 2012. ESI is defined at § 13-1(5). The rules contain a clawback provision at § 13-33 as well as a safeharbor provision at § 13-14(d).

2015 Connecticut Practice Book

Sec. 13-1. Definitions
Sec. 13-2. Scope of Discovery; In General.
Sec. 13-5. Protective Order
Sec. 13-9. Requests for Production, Inspection and Examination; In General
Sec. 13-14. Order for Compliance; Failure to Answer or Comply with Order
Sec. 13-33. Claim of Privilege or Protection After Production

Delaware

Delaware Court of Chancery’s ediscovery rules became effective in January, 2013 and largely track the 2006 amendments to the Federal Rules. There is no rule-based safe harbor for routine, good faith deletion of ESI. Additionally, Delaware has in place a Commercial Litigation spanision track that governs cases over a certain amount in controversy.  The spanision’s rules address how ediscovery is handled in these cases.

Superior Court – Complex Commercial Litigation spanision

E-Discovery Plan Guidelines

Court of Chancery Rules

Rule 26. General provisions concerning discovery.
Rule 30. Depositions upon oral examination.
Rule 34. Production of documents, electronically stored information, and tangible things and entry upon land for inspection and other purposes.
Rule 45. Subpoena.

Guidelines to Help Lawyers Practicing in the Court of Chancery

Evidence Rule 510. Waiver of Privilege or Work Product; Limitations on Waiver

Florida

Ediscovery amendments to Florida Rules of Civil Procedure 1.200 (early conferencing), 1.280 (data accessibility), 1.350 (defining ESI as a document) and 1.380 (good faith deletion safe harbor) became effective in 2012. Ediscovery rule 1.285 (privilege “clawback”) was adopted in 2010.

Florida Rules of Civil Procedure

Rule 1.200 Pretrial Procedure
Rule 1.201 Complex Litigation
Rule 1.280 General Provisions Governing Discovery
Rule 1.340 Interrogatories to Parties
Rule 1.350 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
Rule 1.380 Failure to Make Discovery; Sanctions
Rule 1.410 Subpoena

Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions

Florida Family Law Rules of Procedure

Rule 12.200 Case Management and Pretrial Conferences

Georgia

Proposed changes to the Georgia Civil Practice Act (House Bill 643) focus on proportionality, cooperation, and sanctions.

Rule 5.4 Early Planning Conference and Discovery Plan

Hawaii

Hawaii Rules of Civil Procedure

Rule 26. General Provisions Governing Discovery
Rule 30.  Depositions Upon Oral Examination
Rule 33.  Interrogatories to Parties
Rule 34.  Production of Documents, Electronically Stored Information and Tangible Things and Entry Upon Land for Inspection and Other Purposes
Rule 37.  Failure to Make or Cooperate in Discovery; Sanctions.
Rule 45. Subpoena

Idaho

Idaho adopted its own version of rules of civil procedure, modeled after Texas, and does not follow the Federal Rules of Civil Procedure. Rule 34(b)(2) includes a discretionary cost-shifting provision.

Rules of Civil Procedure

Rule 33 Interrogatories to parties — Availability — Procedures for use.
Rule 34 Production of documents and things and entry upon land for inspection and other purposes — Scope
Rule 45 Subpoena — For attendance of witnesses — Issuance.

Idaho Rules of Family Law Procedure

Rule 415. Option to Produce Records
Rule 416. Production of Documents and Things; Entry on Land
Rule 424. Subpoena for Taking Depositions – Place of Examination
Rule 711. Subpoenas

Illinois

Illinois has made limited amendments to the discovery provisions of its Supreme Court Rules at Rules 201(b) (defining “all retrievable information in computer storage” as a document), 214 (requiring printed productions) and 219(c) (sanctions). Illinois has a clawback provision at Illinois Rule of Evidence 201.

Rule 201 General Discovery Provisions

Rule 214 Discovery of Documents, Objects, and Tangible Things – Inspection of Real Estate

Rule 218 Pretrial Procedure

Rule of Evidence 502 Attorney-Client Privilege and Work Product; Limitations on Waiver

Indiana

Indiana adopted amendments incorporating provisions covering electronic discovery and electronically stored information. The adopted amendments included the Rule 37(e) safe harbor provision.

Indiana Rules of Trial Procedure

Rule 26.  General provisions governing discovery (ammended effective Jan. 1, 2013)
Rule 34.  Production of documents, electronically stored information, etc. (ammended effective Jan. 1, 2013)
Rule 37.  Failure to make or cooperate in discovery; Sanctions (effective January 1, 2008)

Indiana Rules of Evidence

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

Iowa

The Supreme Court of Iowa adopted amendments to Iowa Rules of Civil Procedure on February 14, 2008. These amendments became effective on May 1, 2008 and contain provisions regarding electronic discovery. Iowa also approved Evidence Rule 5.502 which is analogous to Federal Rule of Evidence 502. This rule addresses waiver of privilege and inadvertent disclosure.

Iowa Rules of Civil Procedure

Rule 1.503 Scope of Discovery
Rule 1.504 Protective Orders
Rule 1.507 Discovery Conference
Rule 1.509 Interrogatories to Parties
Rule 1.512 Production of documents, electronically stored information and things; entry upon land for inspection and other purposes
Rule 1.517 Consequences of failure to make discovery
Rule 1.602 Pretrial conferences; scheduling; management
Rule 1.1701  Subpoena
Form 13  Subpoena Form to Testify at Deposition or Produce Documents
Form 14  Subpoena Form to Testify at Hearing or Trial|
Form 15  Subpoena From to Produce Documents or Permit Inspection

Iowa District Court Trial Scheduling Order

Rule 23.5 – Form 2: Trial Scheduling Order

Iowa Rule of Evidence 5.502

Kansas

Kansas approved Bill 434 which adopts amendments to the Kansas Rules of Civil Procedure that are largely analogous with the Federal Rules of Civil Procedure.

Rules of Civil Procedure

§ 60-216 Pretrial conferences; case management conference
§ 60-226 General provisions governing discovery (Effective July 1, 2012)
§ 60-228a Uniform interstate depositions and discovery act (Effective July 1, 2011)
§ 60-233 Interrogatories to parties
§ 60-234 Production of documents, electronically stored information and things and entry upon land for inspection and other purposes
§ 60-237 Compelling discovery; failure to comply; sanctions
§ 60-245 Subpoenas
§ 60-245a Subpoena of nonparty business records
§ 60-426a Attorney-client privilege and work product; limitations on waiver

Louisiana

Louisiana’s ediscovery rules largely follow the 2006 Federal Amendments. The rules address good faith document retention (Art. 1471), data accessibility (Art. 1462), and format of production (1461-1462).

Code of Civil Procedure

CCP 1424 – Scope of discovery; trial preparation; materials
CCP 1460 – Option to produce business records
CCP 1461 – Production of documents and things; entry upon land; scope
CCP 1354 – Subpoena deuces tecum
CCP 1471 – Failure to comply with order compelling discovery; sanctions
CCP 1551 – Pretrial and scheduling conference; order
CCP 1462 – Production of documents and things; entry upon land; procedure

Maine

Maine has adopted amendments to the Maine Rules of Civil Procedure that are largely analogous to the Federal Rules of Civil Procedure.

Rules of Civil Procedure

Rule 16 Pretrial Procedure in the Superior Court
Rule 26 General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
Rule 37 Failure to Make Discovery; Sanctions

Maryland

Amendments to Maryland’s Rules of Civil Procedure incorporating electronically stored information went into effect on January 1, 2008. These amendments largely mirror the 2006 Federal Amendments; Rule 2-402(b) grapples with data accessibility and Rule 2-402(e)(3) & (4) deals with waiver and “clawback” agreements.

Maryland Rules of Civil Procedure – Circuit Court

Rule 2-402 Scope of discovery.
Rule 2-421 Interrogatories to parties.
Rule 2-422 Discovery of documents, electronically stored information, and property.
Rule 2-504 Scheduling order.
Rule 2-504.1 Scheduling conference.
Rule 2-510 Subpoenas.
Rule 2-433 Sanctions.

Massachusetts

Massachusetts has adopted amendments to Rules 16, 26, 34, 37 and 45 of its Rules of Civil Procedure to address the discovery of electronically stored information which will become effective January 1st, 2014. The proposed changes do not include a mandatory meet and confer conference (a party may make a written request for such a conference). Massachusetts Rule of Civil Procedure 37(f) is equivalent to FRCP 37(e).

Massachusetts Rules of Civil Procedure

Rule 16. Pre-trial Procedure: Formulating Issues
Rule 26. General Provisions Governing Discovery
Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering Onto Land, for Inspection and Other Purposes
Rule 37. Failure to Make Discovery: Sanctions
Rule 45. Subpoena

Michigan

Michigan has adopted amendments aimed at ediscovery to several parts of the Michigan Court Rules. Michigan Rule 2.302(B)(5) addresses preservation of ESI and provides a good faith safe harbor for sanctions. Rule 2.401 covers early conferencing.

Rules of Civil Procedure

Rule 2.302 General Rules Governing Discovery
Rule 2.310 Requests for Production of Documents and Other Things; Entry on Land for Inspection and Other Purposes
Rule 2.313 Failure to Provide or Permit Discovery; Sanctions
Rule 2.401 Pretrial Procedures; Conferences Scheduling Orders
Rule 2.506 Subpoena; Order to Attend

Minnesota

Minnesota adopted the Federal Rules of Civil Procedure amendments that follow the 2006 amendments. Notably, effective July 1, 2013, Minnesota Rule 1 was bolstered to call for more proportionality in discovery. Other ediscovery amendments that went effective in July 2013 include changes to early conferencing requirements.

Minnesota Rules of Civil Procedure

Rule 1. Scope of Rules
Rule 16. Pretrial Conference; Scheduling; Management
Rule 26. General Provisions Governing Discovery
Rule 33. Interrogatories to Parties
Rule 34. Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes
Rule 37. Failure to Make Discovery or Cooperate in Discovery: Sanctions
Rule 45. Subpoena

General Rules of Practice

Rule 146 Complex Cases (see 146.05 Case Management Order and Scheduling Order)

Mississippi

Mississippi followed the Texas Rule model beginning in 2003 and included a discretionary cost-shifting rule. Additionally, effective July 1, 2013, the Supreme Court of Mississippi granted a motion to amend Rules 34 and 45 of the Mississippi Rules of Civil Procedure regarding format of production.

Mississippi Rules of Civil Procedure

2012 Amendments to Rules 34, 45

Rule 26(b)(5)
Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
Rule 45. Subpoena

Missouri

Rules of the Court of the Twenty-fifth Judicial Circuit (Maries, Phelps, Pulaski and Texas Counties)

Rule 32.3 Electronic Discovery

Montana

Montana adopted the Federal Rules of Civil Procedure amendments without the mandatory meet and confer provision. Montana is currently considering an additional round of proposed amendments to the Rules of Civil Procedure, which largely contain word tweaks and restructuring of rule content.

Montana Rules of Civil Procedure

Rule 16(b). Scheduling and planning
Rule 26(b). Discovery scope and limits
Rule 26(f). Discovery conference
Rule 33(c). Option to produce business records
Rule 34(a). Scope
Rule 34(b). Procedure
Rule 37(e). Electronically stored information
Rule 45(a). Form – issuance
Rule 45(c). Protection of persons subject to or affected by subpoenas
Rule 45(d). Duties in responding to subpoena

Nebraska

The Nebraska Supreme Court adopted amendments to the Nebraska Discovery Rules 33, 34 and 34A. The rules became effective on June 18, 2008. The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases.

Rules of Discovery in Civil Cases

§ 6-333   Interrogatories to parties
§ 6-334   Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes
§ 6-334A Discovery from a non-party without a deposition

Nevada

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering Onto Land, for Inspection and Other Purposes

New Hampshire

New Hampshire chose to only adopt the mandatory meet and confer provision from the Federal Rules of Civil Procedure amendments.

Rule 25.  Discovery of Electronically Stored Information (ESI)

New Jersey

New Jersey adopted the Federal Rules of Civil Procedure amendments without the mandatory meet and confer provision. The amendments cover data accessibility (Rule 4.10-2(f) and include a good faith sanctions safe harbor at Rule 4:23-6. The Rules also contain a good faith disclosure verification requirement at Rule 4:18.

Part IV – Rules Governing Civil Practice in the Superior Court, Tax Court and Surrogate’s Courts

Rule 1:9. Subpoenas
Rule 4:5B. Case Management; Conferences
Rule 4:10. Pretrial Discovery
Rule 4:17. Interrogatories to Parties
Rule 4:18. Discovery and Inspection of Documents and Property; Copies of Documents
Rule 4:23. Failure to Make Discovery; Sanctions

Rules of General Application

1:11-2 Withdrawal or Substitution

Rules Governing Criminal Practice

3:5-6 Filing; confidentiality
3:6-6 Who May be Present; Record and Transcript
3:9-1 Prearraignment Conference; Plea Offer; Arraignment/Status Conference; Pretrial Hearings; Pretrial Conference
3:13-2 Depositions
3:13-3 Discovery and Inspection
3:13-5 Discovery Fees

Rules Governing Practice in the Municipal Courts

7.7-8 Pretrial Procedures
7:5-1 Filing
7:7-5 Pretrial Procedure
7:7-6 Depositions
7:7-7 Discovery and Inspection

New Mexico

New Mexico’s Rules Committee adopted a series of proposed ediscovery amendments to the Rules of Civil Procedure for the District Courts that largely mirror the 2006 FRCP amendments. However, the amendments do not include adopting the safe harbor provision of Fed. R. Civ. P. 37(e).

Rules of Civil Procedure for District Courts

Rule 1-016 Pretrial conferences; scheduling; management
Rule 1-026 General provisions governing discovery
Rule 1-033 Interrogatories to parties
Rule 1-034 Production of documents and things and entry upon land for inspection and other purposes
Rule 1-037 Failure to make discovery; Sanctions
Rule 1.045 Subpoena.
Rule 1.045.1 Interstate subpoenas.

New York

New York has not modified its civil procedure rules to integrate ediscovery. Limited provisions like CPLR 3122 (format of production, generally) and CPLR 3101 (scope of discovery) as well as preservation form New York’s ediscovery framework. Additional provisions in local court rules provide additional early conferencing obligations.

NYSBA Best Practices in E-Discovery in New York State and Federal Courts

CPLR § 3119 Uniform interstate depositions and discovery (No Link Available)

Uniform Civil Rules of the Supreme and County Courts, § 202.70 Commercial spanision of the Supreme Court

See Rule 1. Appearance by Counsel with Knowledge and Authority.
See Rule 8. Consultation prior to Preliminary and Compliance Conferences.

Uniform Civil Rules for the Supreme Court and the County Court

Section 202.12 Preliminary conference
Nassau County Supreme Court, Commercial spanision Rules

Guidelines for Discovery of Electronically Stored Information (“ESI”)

Form: Preliminary Conference Stipulation and Order

Queens County Supreme Court, Commercial spanision Rules

North Carolina

In October 2011, the Governor signed amendments to the Rules of Civil Procedure addressing ediscovery. Amendments include defining ESI (reasonably accessible metadata is included in the definition, but good cause is required for other metadata), a provision for early discussions and a safe harbor clause.

Rules of Civil Procedure

Rule 16. Pre-trial procedure; formulating issues.
Rule 26. General provisions governing discovery
Rule 33. Interrogatories to parties
Rule 34. Production of documents, electronically stored information, and things; entry upon land for inspection and other purposes.
Rule 37. Failure to make discovery; sanctions.
Rule 45. Subpoena (Amended to add subsection (f), effective Dec. 1, 2011)

Local Rules of North Carolina Business Court

See Rule 17.1 – Case Management Meeting
See Rule 18.6 – Conference of Attorneys with Respect to Motions and Objections Relating to Discovery

Rules for Superior Court Judicial District 15B

Rule 6. Discovery

North Dakota

North Dakota amended the North Dakota Rules of Civil Procedure to be analogous with the Federal Rules of Civil Procedure amendments. North Dakota’s “safe harbor” clause is 37(f) as opposed to 37(e).

North Dakota Rules of Civil Procedure

Rule 16   Pretrial Conferences; Scheduling; Management.
Rule 26   General Provisions Governing Discovery.
Rule 33   Interrogatories to Parties.
Rule 34   Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
Rule 37   Failure to Make or Cooperate in Discovery; — Sanctions.
Rule 45   Subpoena.

Ohio

The Supreme Court of Ohio Rules of Civil Procedure allow for the discovery of electronically stored information. The rules are largely analogous, but differ in some ways. Ohio does not have a mandatory meet and confer provision. Rule 16 relates to pre-trial conferences, authorizes discussions of the timing methods of search through production, and limitations on discovery of ESI. Rule 26(B)(4) limits production from inaccessible sources. If production is ordered, courts specify “format, extent, timing, [and] allocation of expenses” for production. Rule 34(B)(3) provides that production of ESI as ordinarily maintained applies if it is “reasonably usable.” Rule 34(D) permits discovery of ESI before an action is filed. Rule 37(F) provides a five-factor analysis for determining if sanctions should be imposed.

Ohio Rules of Civil Procedure

Rule 16 Pretrial Procedure
Rule 26 General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes.
Rule 37 Failure to Make Discovery: Sanctions
Rule 45 Subpoena

Oklahoma

On November 1, 2010, amendments were made to Oklahoma’s Code of Civil Procedure that address electronically stored information. These amendments are largely analogous to the Federal Rules of Civil Procedure, without a mandatory meet and confer conference.

In August 2009, the Western District of Oklahoma adopted “Best Practices for Electronic Discovery of Documentary Materials in Criminal Cases.” These best practices include: addressing the nature and volume of discovery, timeframes for initial production and requirements that production will be in standard .PDF format and mandatory good-faith discussions of possible cost-sharing, among others.

Rule 5. Pretrial Proceedings

Chapter 39. Oklahoma Pleading Code

Section 2004.1 – Subpoena

Chapter 40. Oklahoma Evidence Code

Section 2502 – Attorney-Client Privilege

Chapter 41. Discovery Code.

Section 3226 – General Provisions Governing Discovery

Section 3233 – Interrogatories to Parties

Section 3234 – Production of Documents and Things and Entry upon Land for Inspection and  Other Purposes

Section 3237 – Failure to Make or Cooperation in Discovery – Sanctions

Oregon

Oregon enacted a single amendment with regard to ediscovery, effective January 1, 2012 that addresses format of production. Rule 43 says ESI is discoverable and, in the absence of a specific required form, must be produced in the form it is ordinarily maintained.

Oregon Rules of Civil Procedure

Rule 43 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

Oregon Tax Court Rules

Rule 43 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

Pennsylvania

Pennsylvania Civil Procedure Rules Committee issued Proposed Recommendation No. 249, which proposes amendments to Rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23 and 4011. The Proposed Recommendation also includes an Explanatory Comment which is the “core of the proposal” and is intended to provide guidance to trial judges and counsel to resolve ESI disputes according to the general principles of Rule 4011 and not pursuant to the Federal Rules of Civil Procedure and federal case law.

The United States District Court, Eastern District of Pennsylvania issued: ‘Order Governing Electronic Discovery': “The court expects the parties to reach an agreement on ediscovery, but states that if an agreement cannot be reached, the parties should designate an ediscovery liaison in order to promote communication and cooperation.”

Pennsylvania Rules of Civil Procedure: Chapter 4000. Depositions and Discovery

Rule 4009.1 Production of Documents and Things. General Provisions
Rule 4009.11 Requests Upon a Party for Production of Documents and Things
Rule 4009.12 Answer to Request Upon a Party or Production of Documents and Things
Rule 4009.21 Subpoena Upon a Person Not a Party for Production of Documents and Things. Prior Notice. Objections
Rule 4009.23 Certificate of Compliance by a Person Not a Party. Notice of Documents or Things Received
Rule 4011 Limitation of Scope of Discovery [and Deposition]

Rhode Island

Superior Court Rules of Civil Procedure

Rule 34. Production of Documents and Things and Entry Upon Land for Inspection for Other Purposes

Family Court Rules of Domestic Relations Procedure

Rule 34.  Production of Documents and Things and Entry Upon Land for Inspection for Other Purposes

District Court Civil Rules

Rule 34. Production of Documents and Things and Entry Upon Land for Inspection for Other Purposes

South Carolina

The South Carolina 2011 Amendments match the 2006 FRCP amendments closely for rules 16, 26, 33, 34 and 45. They do not involve “meet and confers” or disclosure, and rules 26(f) and 34(a) differ in that they authorize discovery conference (including allocation of expenses) and requests for “designated documents, or electronically stored information,” respectively.

Rule 16 Pre-Trial Procedure: Formulating Issues

Rule 26 General Provisions Governing Discovery

Rule 33 Interrogatories to Parties

Rule 34 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

Rule 37 Failure to Make or Cooperate in Discovery: Sanctions

Rule 45 Subpoena

Tennessee

On January 8, 2009, amendments to Tennessee Rules of Civil Procedure pertaining to the discovery of electronically stored information were adopted.

Rules of Civil Procedure

Rule 16  Scheduling and Planning, Pretrial, and Final Pretrial Conferences and Orders
Rule 26  General Provisions Governing Discovery
Rule 33  Interrogatories to Parties
Rule 34  Production of Documents and Things and Entry Upon Land for Inspection and  Other Rule Purposes
Rule 37  Failure to Make or Cooperate in Discovery: Sanctions
Rule  45  Subpoena

Rules of Evidence

Rule 502 Limitations on Waiver of Privileged Information or Work Product

Texas

Texas adopted its own version of rules of civil procedure and does not follow the Federal Rules of Civil Procedure. The unique Texas model influenced the amendment of the rules of civil procedure in Idaho and Mississippi.

Texas Rules of Civil Procedure

TRCP 193.3 Asserting a Privilege (subsection (d) Privilege not waived by production)

TRCP 196.4 Electronic or Magnetic Data

Utah

Utah adopted the Federal Rules of Civil Procedure amendments in 2007. Subsequently, Utah amended Rules 16, 26, 34, and 37, effective 11/01/11.

Rule 16: An added provision specifies that, at a pretrial conference, the court may grant an extension for fact discovery.

Rule 26: Two changes are important.

First, the meet and confer provision adopted in 2007 was repealed.

Second, the “proportionality” standard was added. As to ediscovery, “A party claiming that [ESI] is not reasonably accessible because of undue burden or cost shall describe the source of the [ESI], the nature and extent of the burden, the nature of the information not provided, and any other information that will enable other parties to evaluate the claim.”

Rule 34: A provision providing specifications for the production of ESI was added.

Rule 37: The amended rule incorporates the Rule 26 standard of “proportionality” as the primary criterion for motions to compel or for a protective order.

Utah Rules of Civil Procedure

Rule 26.02 Disclosure in personal injury actions

Rule 33 Interrogatories to parties

Rule 45 Subpoena

Vermont

Vermont adopted amendments to its Rules of Civil Procedure that are largely analogous to the Federal Rules of Civil Procedure, except for the mandatory meet and confer provision. Vermont’s safe harbor provision is located in Rule 37(f).

Rules of Civil Procedure 

Rule 16.2 Scheduling Orders
Rule 33 Interrogatories to Parties
Rule 34 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
Rule 37 Failure to Make Discovery: Sanctions
Rule 45 Subpoena
Rule 26 General Provisions Governing Discovery

Rules of Evidence 

Rule 510 Waiver of Privilege and Work-Product by Disclosure

Virginia

Virginia has adopted amendments to the Virginia Rules of Court that allow for the discovery of electronically stored information. The rules mirror some concepts from the 2006 Federal Rules amendments, but do not require a mandatory meet and confer conference.

Practice and Procedure in Civil Actions
Rule 4:1 General Provisions Governing Discovery
Rule 4:4 Stipulations Regarding Discovery
Rule 4:8 Interrogatories to Parties
Rule 4:9 Production by Parties of Documents, Electronically Stored Information, and Things; Entry on Land for Inspection and Other Purposes; Production at Trial.
Rule 4:9A Production from Non-Parties of Documents, Electronically Stored Information, and Things and Entry on Land for Inspection and Other Purposes; Production at Trial
Rule 4:13 Pretrial Procedure; Formulating Issues

Washington

Proposed amendments to CR 26 and 45 were adopted, effective January 12, 2010. The change to CR 26 includes a new subsection that is “functionally identical” to the federal claw back rule in Fed.R.Civ.P. 26(b)(5)(B). The change to CR 45 includes a new provision that would also incorporate the claw back agreement expressly into the procedures for subpoenas. Rule 502 to the Washington Rules of Evidence (ER) was adopted effective September 1, 2010. ER 502 is based closely on Federal Rule of Evidence 502.

ER 502     Attorney-Client Privilege and Work Product; Limitations on Waiver

Civil Rule 34 Producing Documents, Electronically Stored Information, and Things or Entry onto Land for Inspection and Other Purposes

West Virginia


Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

Wisconsin

The Wisconsin Supreme Court adopted a petition submitted by the Wisconsin Judicial Council to amend the state civil procedure rules to address electronic discovery. The changes are largely analogous to the 2006 Federal Rules of Civil Procedure amendments, and include a mandatory meet and confer requirement for all cases that involve electronic discovery. Amendments became effective on January 1, 2011.

Chapter 802 Civil Procedure – Pleadings, Motions and Pretrial Practice

§ 802.10 Calendar practice.

Chapter 804 Civil Procedure – Depositions and Discovery

§ 804.01 General provisions governing discovery.
§ 804.08 Interrogatories to parties.
§ 804.09 Production of documents and things and entry upon land for inspection and other purposes
§ 804.12 Failure to make discovery; sanctions.

Chapter 805 Civil Procedure – Trials

§ 805.07 Subpoena

Chapter 905 Evidence – Privileges
 
905.03 Lawyer-client privilege (see (5)(a) Effect of Inadvertent Disclosure)

Wyoming

Wyoming adopted amendments to the Wyoming Rules of Civil Procedure that are largely analogous to the 2006 amendments to the Federal Rules of Civil Procedure. Wyoming does not have a mandatory meet and confer conference and the safe harbor clause is contained in Rule 37(f) (as opposed to FRCP 37(e)). United States District Court, District of Wyoming: Local Civil Rules: Rule 26.1 Discovery. This rule requires the parties to meet and confer regarding computer-based information, email information, deleted information and back up data.

Wyoming Rules of Civil Procedure

Rule 16  Pretrial Conferences; Scheduling; Management
Rule 26  General Rules Governing Discovery, Duty of Disclosure
Rule 33 Interrogatories to Parties
Rule 34 Production of Documents, Electronically Stored Information, and Things and Entry Upon land for Inspection and Other Purposes
Rule 37 Failure to Make Disclosures or Cooperate in Discovery; Sanctions
Rule 45 Subpoena

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