Welcome Back – Pa. Supreme Court Issues “ESI” Rules

Published on: June 24, 2012

Welcome back to the Pennsylvania Law Blog, which has been dormant for about a year. It’s not that nothing has happened, it’s just not as easy to maintain a blog as we all had hoped. But our relaunch was designed to occur this summer, and the Pennsylvania Supreme Court has certainly “helped” things along with their first foray into e-discovery and the role of the Pennsylvania Rules of Civil Procedure in dealing with electronically stored information.

Unfortunately, the latest Rules changes don’t provide the type of guidance I had hoped for. First, the Supreme Court explained in its report (Explanatory Comment) that it did not intend to adopt the Federal Rules of Civil Procedure relating to e-discovery. While this is understandable in some ways, the key is to provide guidance, leading to the second point.

Second, the Court emphasized that the changes were intended to encourage “traditional principles of propotionality,” which offers no guidance, particularly in light of the fact that Rule 4009.1(b) (effective August 1, 2012) permits “A party requesting electronically stored information [to] specify the format in which it is to be produced and a responding party or person not a party may object.” This is a recipe for discovery disputes, particularly because so many attorneys simply don’t understand e-discovery or the methods information is stored, maintained or produced. It would seem therefore that the Court chose not to consult those of us who are most familiar with the issues.

Finally, the Rule continues by stating that “If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.” In other words, a party can produce it in any way it wants.

To the Judges of Pennsylvania who handle discovery disputes, welcome to the world of e-discovery. I can only hope that the case law that will inevitably develop provides a bit more guidance, especially since the major body of case law (under the Federal Rules) does not apply.