The Supreme Court of Pennsylvania has adopted new e-discovery rules that expressly distance federal e-discovery jurisprudence and instead emphasize “traditional principles of proportionality under Pennsylvania law.” Notably, the new rules provide that, when weighing proportionality, parties and courts should consider electronic search and sampling technology, among other factors.
The most significant change is to Rule 4009.1, governing requests for the production of documents and things. The current rule defines “documents” as including:
electronically created data, and other compilations of data from which information can be obtained, translated, if necessary, by the respondent party or person upon whom the request or subpoena is served through detection or recovery devices into reasonably usable form.
The amendment deletes this entire phrase and replaces it with the simpler phrase, “electronically stored information.” The amended rule will now read:
Any party may serve a request upon a party pursuant to Rules 4009.11 and 4009.12 or a subpoena upon a person not a party pursuant to Rules 4009.21 through 4009.27 to produce and permit the requesting party, or someone acting on the party’s behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, and electronically stored information), or to inspect, copy, test or sample any tangible things or electronically stored information, which constitute or contain matters within the scope of Rules 4003.1 through 4003.6 inclusive and which are in the possession, custody or control of the party or person upon whom the request or subpoena is served, and may do so one or more times.
But while the rule adopts the phrase used in the federal rules, the official comment makes clear that the court’s intent is not to adopt federal e-discovery law:
Though the term “electronically stored information” is used in these rules, there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information. The treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law as discussed in further detail below.
One other significant change to the rule is addition of a new subparagraph (b) to Rule 4009.1 which addresses the form of production. The new rule says that the party requesting ESI may specify the format in which it is to be produced, to which the responding party may object. If the requesting party does not specify a format, then the ESI may be produced “in the form in which it is ordinarily maintained or in a reasonably usable form.”
Proportionality Should Prevail
The official comment to the amended rules emphasizes the importance of proportionality in determining the scope of discovery obligations. The overarching goal of the rules, the comment says, is to ensure that discovery is conducted in a manner that is “consistent with the just, speedy and inexpensive determination and resolution of litigation disputes.” To that end, the comment continues, courts faced with discovery disputes should consider five factors:
- The nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake.
- The relevance of ESI and its importance to the court’s adjudication in the given case.
- The cost, burden, and delay that may be imposed on the parties to deal with ESI.
- The ease of producing ESI and whether substantially similar information is available with less burden.
- Any other factors relevant under the circumstances.
The comment goes on to identify what it describes as “tools for addressing” ESI. It says:
Parties and courts may consider tools such as electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs. When utilizing non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties.
This language leaves much to interpretation. Even so, it clearly encourages courts and parties to take technology into consideration when weighing discovery burdens and costs. Implicit in this, it seems fair to say, is the court’s recognition that search, sampling and tools such as predictive coding can significantly reduce both the burden and cost of e-discovery.
With these new rules, Pennsylvania’s Supreme Court has made clear its intent to chart its own route on e-discovery, independent of federal jurisprudence. It will be interesting to see how this course develops. Even so, in their own way, these new rules add to the growing body of law that recognizes the increasingly essential link between sophisticated technology and cost-effective e-discovery.