On November 1, 2010, amendments were made to Oklahoma’s Code of Civil Procedure that address electronically stored information. These amendments are largely analogous to the Federal Rules of Civil Procedure, without a mandatory meet and confer conference.
Oklahoma is certainly not the first state to amend its civil procedure rules to reflect the infiltration of electronically stored information in the modern discovery process. Indeed, currently 26 states have adopted state rules that are substantially analogous to the FRCP amendments. In addition, there are currently 4 states that are considering ediscovery rule amendments to varying degrees. For example, New York currently does not have legislation rules explicitly governing ediscovery, however, Bill A06000 was introduced to the New York state legislature on February 23, 2009 (note: this bill is not active in the current legislative session). This bill contains proposed amendments to the Civil Practice Law Rules (CPLR) that would change e-disclosure rules in civil cases, with the primary intention to clarify the treatment of ESI prior to the filing of a note of issue in civil cases. Bill A06000 does not include an amendment to address meet and confer conferences, which is common in a few other states that have adopted amendments largely analogous to the FRCP, including Minnesota, Ohio and Virginia.
Finally, a small handful of states follow the “Texas Model.” Texas added Rules 196.3 and 196.4 to its Rules of Civil Procedure in 1999, marking it the first state to adopt rules explicitly governing ediscovery. Texas’ rules differ in some key regards from the Federal Rules of Civil Procedure, and both Idaho and Mississippi have adopted rules similar to the Texas model
The Texas Rules of Civil Procedure do not require a mandatory meet and confer conference, but rather provide that the court may direct parties and counsel to appear before the court. In addition, there is no rule equivalent to a safe harbor provision. Rather, the Texas rules include a presumption that costs for sanctions motions shall be borne by the offending party unless circumstances make an award of expenses unjust. There is also a difference between the Texas rules and the FRCP regarding production. Texas Rules of Civil Procedure 196.4 requires the requesting party to specify the form in which it wants ESI produced and the responding party must state an objection if it cannot produce the ESI in that form through reasonable efforts. The court must also order the requesting party to pay expenses of any extraordinary steps required to produce the information if the court orders the responding party to comply with the request. Idaho and Mississippi did not include this mandatory cost-shifting rule in their amendments, but rather included a discretionary cost-shifting provision.
In sum, state rules vary widely from coast to coast, and smart litigants must understand the rules and regulations involving the exchange of ESI in any state that has primary or persuasive authority over a matter. Education is essential and Kroll Ontrack provides the resources to help you stay ahead of the game.