New E-Discovery Provisions for Civil Procedure in Local Rules

With dockets often backlogged, litigation costs rising, and e-discovery threatening to overwhelm the process, case management cannot be taken lightly. Accordingly, several states have recently amended their civil procedure rules to narrow the scope of e-discovery and now emphasize the principle of proportionality in e-discovery.

For example, Minnesota’s amended rules, which go into effect on July 1, 2013, alter the scope of permissible discovery. Minnesota Amended Rule of Civil Procedure 26.02 limits discovery “to matters that would enable a party to prove or disprove a claim or defense or impeach a witness and must comport with the factors of proportionality.” Note the departure from the federal standard, which allows discovery of relevant information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Minnesota Rule 26.06 requires parties to confer within 30 days of the deadline for filing an answer, like the federal rules, but it also requires the parties to file a joint e-discovery plan. Parties that do not cooperate in this endeavor can face sanctions.

Similarly, Florida’s amended rules, passed last year, require parties to address the costs and burdens of e-discovery, but with a slightly different take on proportionality: parties should discuss the extent of the need to preserve electronic evidence and whether to conduct e-discovery in phases or limit it to particular individuals, time periods, or sources.

Navigating the nuances in rules between states that address e-discovery and those that do not requires organizations operating in multiple jurisdictions to tread carefully. One common mistake is simply following the federal rules, regardless of jurisdiction – this approach often increases the risks and costs of litigation. Additionally, parties must recognize that what may be proportionate in one state may not pass muster in another, and preservation and production burdens may differ substantially. Therefore, parties should seek advice from e-discovery experts well versed in the jurisdiction’s local rules and practices. With many state rules in flux, obtaining this expert guidance early in a matter is essential to avoiding e-discovery disputes and sanctions.

Chris O’Brien is chief operating officer at Conduent. He can be reached at cobrien@conduent.com.