WI Supreme Court Continues to Debate E-Discovery Amendments

          

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.

In large part, the disagreement between the Justices is based on their varied understandings regarding what cases the rules are most likely to apply to, because not every case involves significant e-discovery.  The dichotomy is as follows:

  • Justices who focus on smaller, less complicated disputes tend to oppose mandatory e-discovery conferences as well as express “claw back” and cost-shifting procedures. 
  • Justices who focus on complex commercial disputes, which frequently involve extremely costly and extensive e-discovery tend to be in favor of mandatory e-discovery conferences, claw back and cost-shifting provisions. 

 Chief Justice Abrahamson has appealed to the public to focus on these particular issues when submitting written comments. As a result, it is worth considering each side of the debate.

 

Mandatory early e-discovery conferences:  Those in favor of an early, mandatory e-discovery conference argue that if the parties confer before discovery, they can reduce the ultimate cost of discovery and head off future disputes before they develop. Those opposed note that the conference is a waste of time in the majority of cases, which are typically small, less complicated disputes in which neither party will request or receive much in the way of e-discovery. Those opposed also note that there is no rule that would prevent parties in complex commercial disputes from meeting and conferring independently in the absence of a rule requiring the parties to meet.  Current vote:  five in favor of this rule, two against (5-2).

 

Claw back provisions:  Those in favor of an express claw back provision note that in cases involving voluminous e-discovery productions, it is extremely expensive and time-consuming for the producing party to review every single document and file prior to production to determine if it contains privileged information. They argue that a claw back provision is necessary to alleviate the producing parties burden by allowing a party who inadvertently produces privileged information to demand its return and prohibit the receiving party from using the privileged information. Those opposed note that an effective claw back rule is both procedural and evidentiary to the extent that it must address whether the privileged information remains privileged despite having been produced. They argue that the claw back rule is best addressed at a later time, when amendments to the rules of evidence can also be considered to avoid inconsistencies between the procedural and evidentiary provisions. Current vote:  three in favor of this rule, four against (3-4).

 

Cost-shifting:  Finally, those in favor of a provision authorizing cost shifting argue that the court should be expressly empowered to make a requesting party pay for the unduly burdensome discovery it seeks. Those opposed only disagree to the extent that they argue that the current rules of civil procedure already authorize the court to require a requesting party to pay for unduly burdensome discovery. They cite Wisconsin case law in support of their position, and note that federal cases provide persuasive authority regarding the circumstances under which cost shifting is appropriate.  Current vote:  three in favor of this rule, four against (3-4).

 

Whether the current distribution of votes will change likely depends on the volume and nature of written comments the Court receives before August 31, 2010, as well as the persuasiveness of any argument the Court hears at the public hearing on September 30, 2010. 

 

Let the arguments begin . . .

"Say Cheese!": Wisconsin Supreme Court Pictures New E-Discovery Rules . . . TWICE.

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.

This amended petition responded to the Court’s requests by more closely tracking language in the Federal Rules of Civil Procedure and incorporating, within the Judicial Council’s own notes, large chunks of commentary supplied by the federal Advisory Committee on Civil Rules. The amended petition also included a new provision granting Wisconsin courts discretion to order that parties confer about various discovery problems, including the discovery of ESI.

The Court considered the Council’s amended petition at an open administrative conference on April 28 (video here) and quickly zeroed in on the Council’s new discovery conference provision. The justices voiced unanimous approval for all other provisions in the amended petition. But several justices, led by Justice Annette Ziegler, argued that the Council had not gone far enough to encourage parties to confer at an appropriately early time about e-discovery issues.

The Court ultimately voted 5-2 to adopt the Council’s amended petition but to change the discovery conference provision to require that parties always confer about the discovery of ESI -- although not about discovery issues generally -- unless excused by the court. The Court was unable to hammer out exact language to adopt during the April 28 conference, finding that it needed more time to get the drafting right. But the Court agreed to have the new rules ready for publication this fall.

The e-discovery debate, however, will not end there. The new rules will not be effective until January 2011, and the Court agreed to hold yet another hearing in the fall to receive public commentary, particularly about the discovery conference provision.  The Court may still make additional changes before those rules apply to proceedings in the Wisconsin courts. 

Other states have and will follow suit, not to mention federal courts.   So while marshalling one's ESI arsenal and assessing its contents may seem like a time-consuming task so early on in the case, it is becoming increasingly clear that this must be done.  E-discovery discussions -- which necessitate an understanding of yours or your client's ESI capabilities and contents -- need to occur early on in the case.  Courts are no longer buying excuses to the contrary.

Wisconsin Supreme Court Hopes to Adopt E-Discovery Rules Later This Term

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.

Wisconsin Supreme Court to Hear Public Comment Regarding Proposed E-Discovery Rules

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.

Coming Soon to a Wisconsin Courtroom Near You?

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!