The federal courts are still getting their feet wet in developing a basic understanding of what constitutes electronically stored information (ESI). Is it email? Certainly, but what about the email stored on inaccessible backup tapes or legacy systems from 15 years ago? What about voicemail, instant messages or random access memory (RAM)? Determining what constitutes ESI has direct implications for the overall costs of accessing, collecting, reviewing and producing ESI.
Now, to complicate things further, consider state courts. Each state has its own unique rules of civil procedure. Those rules are often based, to a certain degree, on the FRCP and the federal courts' applications of them. Why is this important? Put simply, most cases are litigated in state court. While some may argue jurisdiction and other issues make it unlikely that many "bet-the-company" cases will be decided in state courts, smart companies are seriously considering state court rules and working quickly to develop a more complete understanding of them.
And they should. High-profile states, like Texas and New Jersey are leading the way in developing rules that emulate their best understanding of the FRCP amendments, or at least the perceived intent of the amendments. This article reviews some of the states that are playing a critical and influential role in determining how to better account for ESI during discovery, as well as inconsistencies that can be encountered from state to state.
Early adopter states
As of the writing of this article, 17 states have updated their rules of civil procedure to better incorporate definitions and practices around ESI. Some, including New Jersey, have updated state rules to essentially mimic the federal rules. Others, like Texas, had already updated their state rules years before. While these states should be congratulated for trying to stay ahead of the issue and tackling ESI head-on, the examples below suggest that inconsistency is often a by-product of early adoption.
Three states, whose amendments have recently taken effect or, hopefully, are in the process of becoming official, include:
Nebraska. Nebraska's amendments, effective June 18, 2008, encompass three sections (33, 34, and 34A) of the state's Rules of Discovery and make up only three pages of text. Rule 34(a)(1), focused on discovery-related production, states that "any party may serve on any other party a request to produce and permit the party making the request any designated documents or electronically stored information." Electronically stored information (ESI) is the only new language in that passage, but here is something worth noting: ESI is not included in the definition of the term "documents" and is instead kept separate from that term. This definition is inconsistent with how the next state, Iowa, refers to ESI, which should prompt litigators to be vigilant regarding the wording used with opposing counsel and the court, as well as the terminology used within the corporation between groups like legal and IT.
- Iowa. Iowa's amendments, effective May 1, 2008, approach the incorporation of ESI into their state rules differently. First, the amendments span 16 pages of text, more than five times the volume of Nebraska's updates. Also worth noting is that, according to Rule 1.503(1), "any reference in the rules in this division to a 'document' or 'documents' shall encompass electronically stored information." An important point in this example, as well as the example from California that follows next, is that the consistent use and understanding of certain ESI-related terminology is not solely applicable to "technical" terms like metadata. When it comes to the rules that counsel must follow in state courts, the definition of ESI may or may not apply to commonplace terms, like "document." It is extremely important to recognize the nuances of discovery rules from state to state (and from court to court - since different judges, even within a state, might interpret ESI and discovery rules differently).
- California. For months, if not years, many in the legal trenches in California, as well as outsiders looking in, have been waiting for updates in state court rules to better address ESI. On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California's Civil Discovery Act. In his veto message, the Governor explained:
"The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year's legislative session. Given the delay, I am only signing bills that are the highest priority for California. This bill does not meet that standard and I cannot sign it at this time."
The amendments included in AB 926 closely tracked several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. The bill was designed to establish "procedures in the Civil Discovery Act for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any other party to the action." Again, even though the bill did not pass, we have a state that has begun defining ESI outside of the realm of "documents."
Most states that have or are considering updates to the court rules around ESI and discovery are not simply copying and pasting the FRCP amendments into their own rules. Each state's rules are minimally, and often significantly, distinct when it comes to overall procedure and definitions related to ESI. Corporations and outside counsel that must comply with both state and federal rules continue to face growing pains as the courts at both the state and federal levels interpret and apply the rules. Coming in prepared, understanding the nuances in each jurisdiction and collaborating with both the courts and the opposing parties will play a significant role in obtaining consistent treatment of ESI, regardless of jurisdiction or judge.
Sources of information
FRCP amendments. December 1, 2006, was the turning point in many people's minds when it comes to ESI. Electronic information was prevalent long before this date, but after the 2006 amendments, the volume of potentially relevant evidence that could be discoverable quadrupled and has become a central issue of every "meet and confer" conference, production request and review strategy discussion. It has also increased the potential costs of responding to discovery requests tenfold.
Uniform state rules. Federal laws are designed to apply to all 50 states. While uniformity has its advantages, no single state ever gets what it needs: a law customized to the state's unique considerations relating to its people and processes. The Uniform Law Commission (ULC)1 "provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law." Commissioners "have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical." The ULC's Uniform Rules Relating to Discovery of Electronically Stored Information is a significant influencer and is considered by many states as bridging the gap between the FRCP mandates and state-specific requirements for their own state rules.
"Best practices" organizations (think tanks). Industry standards groups, such as The Sedona Conference and Electronic Discovery Reference Model (EDRM), are considered leaders in developing "best practices" methodologies for understanding and complying with electronic discovery requirements, including the FRCP. States have traditionally relied on federal laws, thought leaders from their own government agencies as well as non-partisan groups, like Sedona, to better understand technical and legal requirements.
Courtesy of Eric Sedwick of Fios, Inc.