On January 21, the Wisconsin Supreme Court held a lengthy public hearing and open administrative conference about the Wisconsin Judicial Council's petition for an order amending the state rules of civil procedure to deal explicitly with the discovery of electronically stored information. E-Discovery fans with roughly 5 hours to spare may view the entire hearing and conference here. Everyone else may read on to get the executive summary below.
Three speakers appeared at the public hearing to oppose the Judicial Council's petition. For the most part, the Council's opponents argued that the Council had not gone far enough to bring the state rules of civil procedure into conformity with the federal rules. Their sometimes wide-ranging critique focused most centrally on the Council's decision not to propose amendments: (1) requiring that parties meet early in the proceeding to confer about the discovery of electronically stored information, (2) permitting a party who inadvertently discloses information that is privileged or protected as trial preparation material to "claw back" that information by asserting the claim of privilege or protection after the fact, or (3) explicitly relieving a party from the burden of disclosing electronically stored information that is not reasonably accessible because of undue burden or cost. To a lesser extent, the Council's opponents also criticized the Council for declining to propose the creation of a state rule based on Rule 502 of the Federal Rules of Evidence or a provision explicitly authorizing the circuit court to appoint a special master to handle e-discovery disputes.
During the open administrative conference that followed upon the public hearing, the Wisconsin Supreme Court quickly and unanimously resolved to adopt a set of noncontroversial amendments in the near future while also regarding these amendments as the beginning of a work in progress. The chief justice said that she hopes to see a revised petition from the Judicial Council in 2-3 months and then to adopt a set of amendments in May. This timetable may not hold, however, pending input from the Judicial Council. "They have day jobs," the chief justice observed of the Council's members.
The court stated that the Judicial Council's new petition must eliminate some non-substantive differences between language in the Council's proposed amendments and language in the Federal Rules of Civil Procedure. The court also recommended that the Council expand its commentary to the proposed amendments, including by incorporating commentary to the federal rules that serve as a basis for the Council's proposal. Finally, the court asked the Judicial Council to consider -- although only to consider -- proposing some of the additional provisions recommended by those who spoke in opposition to the Council during the public hearing.
The court seemed to take particular interest in the possibility of adopting a provision requiring parties to confer about e-discovery issues early in the proceeding. Some of the Council's opponents suggested that the proposed amendments could be improved without going so far as to generally require that parties conduct an e-discovery conference and develop a plan addressing e-discovery issues. One proposal, for example, would give either side the right to demand an e-discovery conference but would impose no requirement absent such a demand. The court identified the issue of an e-discovery conference as the point of disagreement that the Council and its opponents are most likely to resolve.
The court also stated that it is open to receiving a revised petition addressing the other issues that sparked debate during the public hearing. It acknowledged, however, that most of these issues are controversial and perhaps are best dealt with down the road.
Above all, the court made clear its commitment to adopting a set of e-discovery rules as soon as practicable. It seems very likely that the court will grant the Judicial Council's revised petition and will wait to deal with the more contentious e-discovery issues in the years to come.