Pennsylvania Issues Electronic Discovery Rules
The Pennsylvania Supreme Court has amended the Pennsylvania Rules of Civil Procedure to specifically provide for the discovery of electronically stored information (ESI). The Rule amendments are effective August 1, 2012.
With its amendments to the Pennsylvania Rules, the Pennsylvania Supreme Court has rejected the significantly more stringent standards developed in federal court. Although Pennsylvania will now specifically permit the discovery of ESI, the Rules Committee in its Explanatory Comment stated that this discovery — like all state court discovery — is subject to a proportionality standard.
In assessing ESI discovery requests, both in scope and form requested, the Explanatory Comment accompanying the new Rules states that courts should consider the following factors:
(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.
The Rule amendments do not appear to represent a significant change in Pennsylvania discovery practice. Discovery of ESI was likely permissible — and in fact sought — under the prior Rules. Now, however, Pennsylvania Rules will acknowledge the existence of ESI and provide guideposts for further development by state courts.
Because the Rule amendments are general and leave development of the scope ESI discovery open to interpretation by courts, lawyers should continue to monitor how state courts apply the amended Rules. It’s doubtful, though, that Pennsylvania courts will wade into complicated rules such as those established by the Zubulake v. UBS series of cases or the Sedona Principles.
The amended Pennsylvania Rules and Explanatory Comment appear below: