eDiscovery Navigator

Delaware Court Of Chancery Announces Rule Changes And New Discovery Guidelines
by Delaware Court of Chancery

The Court of Chancery amended its Rules regarding discovery, effective January 1, 2013.  Rules 26, 30, 34 and 45 were updated to account for modern discovery demands and will bring the Court’s rules in line with current practice. The amendments refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things,” and explain how parties should respond to requests for ESI. These changes are consistent with similar amendments to the Federal Rules of Civil Procedure. Rule 26(c) also was revised to make clear that an out-of-state non-party from whom discovery is sought may move for a protective order in this state. 

The Delaware Superior Court Establishes A Complex Commercial Litigation Division To Address The Concerns Of The Business Litigant

The Delaware Superior Court Establishes A Complex Commercial Litigation Division To Address The Concerns Of The Business Litigant

"Probably the most valuable aspect of the CCLD is its E-Discovery Plan Guidelines. It is well-documented that business litigants struggle to strike an appropriate balance between conducting necessary e-discovery and covering the significant expense such discovery often entails. Parties often have to consider whether the likelihood of prevailing, and the likely amount of recovery, justify the cost and uncertainty of embarking on the e-discovery process. To address these very real concerns, the E-Discovery Plan Guidelines allow for meaningful input by counsel into the e-discovery process and call for the entry of an e-discovery order to govern how electronically stored information (ESI) will be preserved, produced and protected. The order is to be entered early in the case and should guide the parties as they proceed to conduct e-discovery. The order also will allow for reasonable restrictions on the scope of e-discovery where a party can show production of certain ESI will subject it to undue burden or expense."

Wisconsin's Proposed Electronic Discovery Rules

Proposed Rules for Electronic Discovery

"On Jan. 21, 2010, the Wisconsin Supreme Court will hold a public hearing regarding the proposed amendments, with the court’s conference in the matter to immediately follow. The amendments are adapted from the Uniform Rules on the Discovery of Electronically Stored Information and the 2006 amendments to the Federal Rules of Civil Procedure. The new rules are “intended to provide consistency and predictability in the discovery of electronically stored information.” In addition, the rules 'are intended to reduce the economic burden that can result from the discovery involving the enormous volume of electronically stored information.'"

California Governor Approved Electronic Discovery Act

On June 29, 2009, Governor Arnold Schwarzenegger signed California's Electronic Discovery Act into law.  Because the Act contains an urgency provision, it is effective as of June 29, 2009.

Here's the Electronic Discovery Act in its entirety.

Rulemaking In State Courts: A Rationale For Adopting ESI Provisions Of FRCP 26

Rulemaking In State Courts: A Rationale For Adopting ESI Provisions Of FRCP 26

"The Federal Rules of Civil Procedure were amended on December 1, 2006 to address discovery of electronically stored information (ESI). Among the amendments to the Federal Rules were significant changes to Rule 26 that provide additional protections to litigants who are dealing with a proliferation of computer usage, inexpensive data storage, and developments in communication technology that have changed discovery practice tremendously over the past several years. While several states have adopted (or are working on adopting) new rules, some of which are modeled after the Federal Rules, many states have either decided not to implement new rules or have adopted a "wait and see" approach to see how the Federal Rules work before adopting state rules. We have seen since its adoption in 2006, that three provisions in Fed. R. Civ. P. 26 greatly benefit litigants: the so-called "claw-back" provision; the two-tiered bifurcation of discovery based on active and "not reasonably accessible" information; and the inclusion of a discussion of ESI in early case planning conferences. Some states decided long ago not to compel litigants into early case management conferences and may not be likely to revisit that issue. Adopting the claw-back and two-tiered approach, however, would provide litigants with much needed protection and predictability in the discovery process."

E-Discovery: Texas Ahead of the Game

E-Discovery: Texas Ahead of the Game

"Having a good e-discovery strategy is an organization's first line of defense in a court proceeding. If an agency must deal with litigation, attorneys for all parties will likely request documents that may only exist in electronic form. In the past, if correspondence was requested, an organization would try to produce all the relevant memos and letters employees had written. Instead of instant messages, you rounded up all the sticky notes in your office. Now, many of those documents exist electronically.

On Dec. 1, 2006, amendments were made to the Federal Rules of Civil Procedure, including changes mandating that electronic documents in federal court are to be treated, legally speaking, the same as paper documents. The rules govern how federal courts deal with discovery requests in civil proceedings. It's important for state and local governments to be aware of them because state and local courts generally reflect federal court practices. That's where the amended rules come in - they're part of an effort to eliminate a lot of uncertainty surrounding e-discovery.

Texas, like some other states, proactively changed its procedures prior to the federal rule amendments. David Halpern, the assistant attorney general at the Texas Office of Attorney General (OAG), said that while the amendments raise awareness, Texas had already moved on e-discovery."