State E-Discovery: An Important Year For Changes

Monday, January 31, 2011 - 01:00

The webinar and many of the documents relevant to this interview are available without charge at

Fios, Inc. provides legal teams with flexible electronic discovery technologies and services that deliver the speed and the quality necessary to cull, analyze, review and produce ESI with confidence.

Mr. Allman, one of the leading experts on state e-discovery, is chair emeritus of the steering committee of the Sedona Conference Working Group on Electronic Document Retention and Production.

Mr. Wilen regularly writes industry blogs and articles on a broad array of e-discovery issues and holds degrees in law and computer science, and a Project Management Professional (PMP) credential from the Project Management Institute.

Wilen: Why is what is happening in the states so important?

Allman: The federal docket is dwarfed by the number of cases that are pending in the state courts around the United States. The great bulk of litigation that is important to individual Americans and their businesses relies on state systems. Correspondingly, most e-discovery also takes place in the state system. Therefore, how states treat e-discovery is ultimately crucial to all of us.

Wilen: How do you explain that two years ago only 17 states had adopted procedural rules that addressed e-discovery issues and now 37 have done so?

Allman: It takes a while for a state to go through its unique procedures to get comfortable with adopting e-discovery rules, and most of the states that are going to do so probably have now acted. There are some remaining states such as New York, Illinois, Pennsylvania and Florida that for a variety of reasons - and they differ from state to state - are going to be taking quite a bit longer to complete their process. Indeed, some of them may never adopt specialized rules for e-discovery.

Wilen: What are the ways in which the states have acted?

Allman: Let me give you some history. We'll start with Texas. In 1999, Texas was the first state to adopt e-discovery rules, which it did in a very impressive way. Its approach is embodied in one section, which simply says that if the electronic data being sought is not reasonably available in the ordinary course of business, a party may object based on that fact, and if later ordered to produce, then the requesting party must pay for any extraordinary steps that have been incurred in putting that information together for production. That pattern has been followed in two other states.

Most of the other states have adopted the 2006 federal amendments, which are a balanced set of amendments that deal with discovery of electronic data and provide a safe harbor for certain classes of electronically stored information. Some states treat these rules as an alternative set of procedures which are not required in each and every case. They are applied only if the parties agree to it and the court orders it, except that in some cases the court can order it itself.

Wilen: How has uniformity of procedural e-discovery been achieved in federal and state courts within specific states?

Allman: In a fascinating opinion in the Weekley Homes case,1 the Texas Supreme Court recently held that the distinctions between the Texas rule on inaccessible information and the federal rules were not such as to prevent the use of case law from the federal courts in interpreting the state rule. As is implicit in the Weekley decision, parties who practice in both the state and the federal systems within a particular jurisdiction should not have to face different procedures depending upon which system they're in.

The reason for that is not just efficiency and cost, although those are important factors, but also to enhance the sense of fairness to the parties. As a practical matter, this is almost always going to favor federal decisions, because federal judges have the advantage of access to magistrate judges and law clerks and are able to provide written explanations for rulings.

This growing trend toward uniformity is beginning to be the dominant force in those jurisdictions that have not yet acted, and may actually inhibit further formal rulemaking.

Wilen: Is there a movement at the state or federal level to adopt a preservation or spoliation rule beyond that of the 2006 Amendments?

Allman: There has been a renewed interest in addressing the gap in rulemaking with respect to the duty to preserve. Those of you who have read The Metropolitan Corporate Counsel regularly know that the corporate community has long advocated having readily predictable and carefully written rules that would help persons who are seeking to determine the scope of their duties to preserve.

This was discussed at a panel at the Duke Conference in May 2010 on which I sat with Judge Scheindlin, Judge Facciola and three prominent outside lawyers. The unanimous recommendation of our panel was that the federal rules should address preservation and spoliation in more detail. A subcommittee of the Rules Advisory Committee has been tasked with the responsibility of seeing if it is feasible to do so.

The process of amending the federal rules is only beginning and it is not at all clear that the federal authorities will act. As a result, there is a possibility that some states may go forward with their own unique and creative rulemaking process to deal with the issues.

Wilen: Do you see the pilot programs being conducted in both the federal and state systems playing a role in rulemaking involving preservation or spoliation?

Allman: The Seventh Circuit is presently conducting pilot projects in some of its district courts, which require specific attention to presumptive limits on preservation absent agreement or court orders. The American College of Trial Lawyers is conducting pilot projects in New Hampshire and Massachusetts as we speak, and more such projects may be in the offing. Through these and other efforts we may learn more about how best to manage e-discovery and preservation. This information will be fed back into the rulemaking process.

Wilen: What role is the private sector and the organized bar playing in this?

Allman: The Rules Committee is highly receptive to suggestions from the private sector. Both at the Duke Conference and, as recently as November of this past year, Lawyers for Civil Justice made submissions with some very helpful suggestions, which the Committee is very seriously considering along with other ideas on how best to proceed.

Indeed, I don't think any of this would be occurring if it were not for the widespread belief in the private sector, particularly among corporations, that at least for some classes of cases and some types of litigation a great deal more precision is needed than is currently available in the rules. Unfortunately, the ACC has largely been absent from the discussion so far.

Wilen: How would you characterize the role of individual corporate counsel in what you've been describing?

Allman: Corporate counsel need to stay in touch with these developments at both the state and national levels and express their views either directly or through their organizations and law firms. The subcommittee's draft will ultimately become public, and everyone can make a contribution to the further evolution of these ideas.

Wilen: How can consultants and vendors be of help?

Allman: The rulemaking process we have been describing is all about controlling e-discovery costs while producing a fair and just result. I applaud the efforts of organizations such as Fios for keeping the public and its clients informed through its webinar series and other services about the latest developments in the technology of e-discovery and preservation.

Wilen: Tom, thank you for your time and your many valuable insights. We look forward to speaking with you again soon.

I'd like to remind our readers that Fios has been offering expert e-discovery guidance for over a decade to clients with matters in both federal and state courts.

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1 295 S.W. 3d 309 (2009).