Pa. Supreme Court Rejects Federal Case Law on E-Discovery; Adopts Proportionality Test for E-Discovery in Amendments to Rules of Civil Procedure

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Under the amended Pennsylvania rules, the parties—and the court—may address electronically stored information differently depending on the financial risk and the varying complexity of the case.

The Supreme Court of Pennsylvania on June 6, 2012, amended the Pennsylvania Rules of Civil Procedure to officially include the discovery of electronically stored information. The amended rules become effective on August 1, 2012.

Changes to Rules

Amended Rule 4009.1 includes "electronically stored information" among the list of items a party may request. The person requesting electronically stored information may specify the format in which it is to be produced and the responding party may thereafter object. If no format has been requested, the responding party may produce electronically stored information in the form in which it is ordinarily maintained or in a reasonably usable form.

The Pa. Supreme Court further amended 4009.11 to encourage "limitations as to time and scope" and "agreements between the parties on production formats and other issues." Rule 4011, which addresses the limitations of scope of discovery, was also amended to expressly include electronically stored information.

Rejection of Federal Case Law

Although the amended Pennsylvania rules reference "electronically stored information"—the same term provided for under the Federal Rules of Civil Procedure—the official note clarifies that "there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information." See Explanatory Comment, Note "A." Instead, "[a]s with all other discovery, electronically stored information is governed by a proportionality standard. . . ." See Explanatory Comment, Note "B."

Under the proportionality standard, the official note directs a court to consider:

"(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; (ii) the relevance of electronically stored information and its importance to the court's adjudication in the given case; (iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; (iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and (v) any other factors relevant under the circumstances." See Id.

By expressly rejecting the Federal Rules of Civil Procedure, Pennsylvania courts may continue to address discovery issues by balancing a party's need for information with a party's burden of producing the requested information in the context of how the dispute relates to the import of the case. The proportionality test thus provides a court wide discretion in resolving e-discovery disputes.

Additionally, unlike its federal counterpart, the Pennsylvania rule favors, but does not require, the parties to meet and confer on e-discovery before the commencement of discovery. The note to the amended rules states that parties may consider electronic searching, sampling, cost-sharing and non-waiver agreements, but does not require any party to do so.

Under the amended Pennsylvania rules, the parties—and the court—may address electronically stored information differently depending on the financial risk and the varying complexity of the case. In this regard, with the exception of officially recognizing electronically stored information as a discoverable item, the amended Pennsylvania rules are not that different.

For Further Information

If you have any questions about this Alert, please contact Sandra A. Jeskie, Ryan E. Borneman, any member of the Trial Practice Group or the attorney in the firm with whom you are regularly in contact.