Proposed Recommendation No. 249: Proposed Amendment of Rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011 Governing Discovery of Electronically Stored Information with Explanatory Comment
According to this proposed recommendation, the “core of the proposal is an explanatory comment, which provides that the discovery of electronically stored information will be governed by the same considerations that govern other discovery.” In addition, the stated purpose of this recommendation is to provide the trial judge and counsel with guidance to resolve ESI disputes according to the general principles of Rule 4011 and not pursuant to the Federal Rules of Civil Procedure and federal case law.
Proposed Changes – Rule 4009.1. Production of Documents and Things. General Provisions.
Amend 4009.1(a) to include: “electronically created data, and other compilations of data from which information can be obtained, translated, if necessary, by the respondent party or person upon whom the request or subpoena is served through detection or recovery devices into reasonably usable form)] and electronically stored information, or to inspect, copy, test or sample any tangible things or electronically stored information” in the definition of discoverable information.
Amend 4009.1(b): A party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. 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.
Proposed Changes – Rule 4009.11. Request Upon a Party for Production of Documents and Things.
Amend to include the following note: A request seeking electronically stored information should be as specific as possible. Limitations as to time and scope are favored, as are agreements between the parties on production formats and other issues. See also Rule 4009.1 generally regarding electronically stored information.
Proposed Changes – Rule 4009.12. Answer to Request Upon a Party for Production of Documents and Things; Rule 4009.21. Subpoena Upon a Person Not a Party for Production of Documents and Things. Prior Notice. Objections; Rule 4009.23. Certificate of Compliance by a Person Not a Party. Notice of
Documents or Things Received
Amend rules to include the following note: See Rule 4009.1 regarding electronically stored information.
Proposed Changes – Rule 4011. Limitation of Scope of Discovery [and Deposition]
Amend Rule 4011: Include discovery of the ESI in the scope limitations of discovery
Explanatory Comment – Electronically Stored Information
A. No Importation of Federal Law
Though the term “electronically stored information” is used in these rules, there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information. The treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law as discussed in further detail below. (Emphasis added).
B. Proportionality Standard
As with all other discovery, electronically stored information is governed by a proportionality standard in order that discovery obligations are consistent with the just, speedy and inexpensive determination and resolution of litigation disputes. (Emphasis added). The proportionality standard requires the court, within the framework of the purpose of discovery of giving each party the opportunity to prepare its case, to consider: (i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; (ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; (iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; (iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and (v) any other factors relevant under the circumstances.
C. Tools for Addressing Electronically Stored Information
Parties and courts may consider tools such as electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs. (Emphasis added). When utilizing non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties. See, e.g., Fed. R. Evid. 502(c)
D. Eliminating References to “Depositions”
The elimination of specific references to “depositions” in Rule 4011 is not intended to exclude depositions from the scope of this rule. The reference was eliminated because there was no reason to call out this one form of traditional discovery among many.
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