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The Pennsylvania Supreme Court recently adopted amendments to the Rules of Civil Procedure governing E-Discovery that will go into effect on August 1, 2012. These amendments are Pennsylvania's first rules specifically addressing E-Discovery.

The new E-Discovery Rules confirm that the discovery of electronically stored information, like all forms of discovery, is governed by a proportionality standard. The Rules provide a framework for resolving E-Discovery proportionality disputes, requiring consideration of the following factors:

  1. The nature and scope of the litigation, including the importance and complexity of the issues and amounts at stake;
  2. The relevance of electronically stored information and its importance to the court's adjudication in the given case;
  3. The cost, burden and delay that may be imposed on the parties to deal with electronically stored information;
  4. The ease of producing electronically stored information and whether substantially similar information is available with less burden; and
  5. Any other factors relevant under the circumstances. 

Pa. R. Civ. P. 4009, Explanatory Comment § B. These factors are similar to the factors listed in Federal Rule of Civil Procedure 26(b)(2)(C)(i)-(iii) (including the "needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues").

The new E-Discovery Rules make clear that not every case requires broad E-Discovery. The appropriateness of E-Discovery in a specific case depends upon a consideration of the above factors.

While the new E-Discovery rules, like the federal rules, use the term "electronically stored information," the Comments to the new Rules provide that "there is no intent to incorporate the federal jurisprudence of electronically stored information."

Likewise, the new E-Discovery Rules do not incorporate all of the federal E-Discovery procedures. For example, there is no requirement that the parties meet at the outset of the case to establish an E-Discovery protocol, as required by Federal Rule of Civil Procedure 26(f). Nevertheless, the Rules provide that parties and courts may consider various tools for addressing electronically stored information, including "electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs." Pa. R. Civ. P. 4009, Explanatory Comment § C.

By not adopting the Federal Rules on E-Discovery, the Pennsylvania Supreme Court established a clean slate upon which trial courts may try to develop their own unique sets of procedures. As with all forms of discovery, the rules place the impetus on the parties to establish proper self-imposed procedures and limitations that are appropriate in light of the facts and circumstances of each case. Early discussions and agreements between the parties remain one of the most effective ways to limit discovery costs and disputes.