E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

On July 6, 2010, the Wisconsin Supreme Court set the date for the next and final hearing regarding amendments to the state rules of civil procedure that relate to the discovery of electronically stored information. The hearing will take place on September 30, 2010 at 9:30 a.m. at the State Capitol in Madison. The Court will accept written comments from the public until August 31, 2010. 

By a 4-3 vote, the Court has already adopted amendments to Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12 and 805.07 to address e-discovery. However, the amendments are subject to revision following public comment and the hearing on September 30, 2010. The amendments will become effective January 1, 2011. 

As the 4-3 voting split indicates, the Court is not of one mind regarding the amendments. While all of the Justices agree that the rules should be amended to address e-discovery, there are three key issues regarding which the Court remains divided: 

(1) whether the rules should require parties to meet and confer on e-discovery at the outset;

(2) whether the rules should include a “claw-back” provision; and

(3) whether the rules should expressly provide for cost-shifting. 

Currently, the amendments include a mandatory meet and confer provision regarding e-discovery and do not include claw back or cost shifting provisions.  Under the circumstances, and because the Court is divided, it looks as though the public has a meaningful opportunity not only to be heard, but to affect the ultimate outcome.

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Courts are becoming increasingly persnickety when parties fail to discuss e-discovery issues early on in the case, even to the point of imposing sanctions.  The latest railway car attached to this train of thought, can be found in The Cheese State.

Back in January, we reported on the Wisconsin Supreme Court’s 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 (ESI). Those meetings closed with the court asking for a new petition that would rely more heavily on language in the Federal Rules of Civil Procedure, incorporate commentary to the federal rules, and possibly include new substantive provisions, particularly one requiring that parties confer about e-discovery issues early in any proceeding.

The Judicial Council submitted its amended petition in March.

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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.

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On January 21, 2010, the Wisconsin Supreme Court will hear public comment regarding proposed amendments to the state rules of civil procedure to include specific provisions regarding discovery of electronically stored information. According to the Court's Order, the hearing will take place at 9:30 a.m. at the State Capitol in Madison. 

Although this will be the first public hearing before the Wisconsin Supreme Court, it will not be the first time members of the public have had the opportunity to comment on the proposed rules. 

Prior to filing the petition to amend the rules, the Wisconsin Judicial Council sent the proposed amendments to more than 20 organizations and individuals within the business and legal communities, including every section of the State Bar, several associations of trial and family lawyers, the state chief judges, e-discovery consulting firms, the Deans of Marquette and UW-Madison Law Schools, Wisconsin Manufacturers and Commerce and others. Less than a handful of those solicited responded, each offering minimal, but positive remarks.

Given the limited feedback the Judicial Council received, it appears unlikely that the public hearing will include any heated debates. However, for those interested in e-discovery in Wisconsin, January 21, 2010 appears to be the time to speak or forever hold your peace.

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It is rare to find one of those shared tenets that defy all cultural, geographic, and chronological boundaries -- some fundamental underpinning of life found everywhere from the days of the caveman to the modern age. One we can all agree on, however, is that a professional's worth is and always has been commensurate with his or her experience. The senior dragon slayer of King Arthur's round table received a shinier suit of armor than the new guy. The master caveman's time and worth rose above the apprentice's. And in present day law firm culture, the value of the Associate is often dwarfed by that of the Senior Partner in the cozy corner office.

Electronic discovery, however, has turned this fundamental dynamic on its head. In most areas of the law, change is effected in small increments, opinion by opinion and statute by statute. Sage senior lawyers add to their existing knowledge by keeping up on recent developments -- no fundamental change in thinking is required. Electronic discovery, however, has forced a radical, qualitative change in almost every aspect of how discovery is conducted. Heck, an entire Federal Rule of Civil Procedure was rewritten to account for it. And the dreaded "it" -- that virtual elephant in the room -- is everywhere. As Judge Shira Scheindlin of the Southern District of New York observed in an interview, "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery."

This ever-expanding nature of e-discovery is carving out a unique dynamic in the three-ring circus that is the Law Firm and the in-house legal department. In short, the problem is that the two parts of the equation needed to master e-discovery (expertise in discovery law and procedure, and expertise in electronic media) are currently located in two separate circus rings: the Ringmaster's and the Clown's.
 

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It looks like Wisconsin will soon join a number of states (roughly half of the country) who have amended or adopted rules of civil procedure to include specific provisions regarding discovery of electronically stored information. 

After considering the issue for several months, the Wisconsin Judicial Council filed a petition with the state Supreme Court proposing amendments to the state statutes that provide the rules of civil procedure. 

In general, the proposed amendments are consistent with, and based on the 2006 amendments to the Federal Rules of Civil Procedure regarding electronic discovery.  For example, the proposed amendments:

1. Encourage the parties to discuss electronically stored information early in the discovery process;
2. Address the format in which electronically stored information should be produced;
3. Limit the information that must be produced to reasonably accessible information; and
4. Contain a safe harbor provision to protect a party who destroys information in good faith according to a routine records retention policy.

Despite these general similarities, the proposed amendments differ from their federal counterparts in three important respects. Unlike their federal counterparts, the proposed amendments:

1. Provide a definition for "electronically stored information" that is "intended to be broad enough to cover all current types of computer based information yet flexible enough to encompass future changes and technological developments." 
2. Do not require the parties to discuss electronically stored information at a discovery conference because Wisconsin does not require a discovery conference.  Instead, the proposed amendments "encourage the courts to address the management of electronic discovery early by adding electronically stored information to the list of items that can be addressed by scheduling order, although it is not required."
3. Do not contain a claw-back procedure to protect parties who inadvertently produce privileged or protected information. According to the Judicial Council, "waiver of privilege is more properly addressed under the rules of evidence, including the attorney client privilege and the work product doctrine, than in the discovery rules."  

The Supreme Court is expected to hear public comment on the proposed amendments soon, but the hearing date has not yet been scheduled.  Stay tuned!

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A bill to add a New Federal Rule of Evidence was introduced in the Senate on December 11, 2007 and approved by the Senate Judiciary Committee on January 31, 2008.  Prior to its introduction on December 7, 2007, the ABA sent a letter to the Senate Judiciary Committee endorsing the proposed rule.

The new proposed rule addresses waiver of the attorney-client privilege and the work product doctrine.  The proposed rule provides protection against a finding of waiver in circumstances where there is an inadvertent disclosure/production of privileged material, as long as the disclosing party had taken reasonable steps to prevent the disclosure.

This proposed rule is intended to remedy the problem of conflicting rules and decisions on this topic by the various federal courts.  It is also aimed at the great risk of inadvertant production and soaring litigation document review costs in the age of e-discovery. The proposed rule, however, does not identify what constitutes "reasonable measures" to protect against disclosure, so there will still be plenty of room for disagreement.

thomas.loc.gov/cgi-bin/query/z --Text of proposed Rule 502.

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The Advisory Committee on the Federal Rules of Civil Procedure recently created a new Rule that is at least tangentially related to e-discovery.  The new Rule 5.2 addresses privacy concerns for documents e-filed in federal court.  The new rule provides guidance on what information should be redacted, what may be filed under seal and how to file a single "reference list" containing all confidential information redacted from other documents.  Notably, a party waives the right to the protection of the Rule if it files its own confidential information without redaction.  While some courts, such as  the Eastern District of Wisconsin, had already adopted similar rules on a local basis, the Committee has now made them applicable to all federal civil courts.  The new Rule went into effect on December 1, 2007.

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As part of the hilariously named "Style Project," the Advisory Committee on the Federal Rules of Civil Procedure has renumbered several Federal Rules relating to e-discovery.  I thought the Rules were elegant before, but now, WOW!  I need a cold shower.  A handy chart summarizing the rule changes can be found here.

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