The Supreme Court of Pennsylvania recently amended the Pennsylvania Rules of Civil Procedure to officially include the discovery of electronically stored information. The amended rules become effective August 1, 2012.<\/p>\n
Changes to Rules<\/strong><\/p>\n Amended Rule 4009.1 includes \u201celectronically stored information\u201d among the list of items a party may request. The person requesting electronically stored information may specify the format in which it is to be produced and the responding party may thereafter object. If no format has been requested, the responding party may produce electronically stored information in the form in which it is ordinary maintained or in a reasonably usable form.<\/p>\n <\/p>\n The Supreme Court further amended 4009.11 to encourage \u201climitations as to time and scope\u201d and \u201cagreements between the parties on production formats and other issues.\u201d Rule 4011, which addresses the limitations of scope of discovery, was also amended to expressly include electronically stored information.<\/p>\n Rejection of Federal Case Law<\/strong><\/p>\n Although the amended Pennsylvania rules reference \u201celectronically stored information,\u201d the same term provided for under the Federal Rules of Civil Procedure, the official note makes clear that \u201cthere is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information.\u201d See Explanatory Comment, Note \u201cA.\u201d Instead, \u201c[a]s with all other discovery, electronically stored information is governed by a proportionality standard. . . .\u201d See Explanatory Comment, Note \u201cB.\u201d<\/p>\n Under the proportionality standard, the official note directs a court to consider: \u201c(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\u2019s 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.\u201d See id.<\/p>\n By expressly rejecting the Federal Rules, Pennsylvania Courts may continue to address discovery issues by balancing a party\u2019s need for information with a party\u2019s burden of producing the requested information in the context of how the dispute relates to the import of the case. The proportionality test thus provides a court wide discretion in resolving e-discovery disputes.<\/p>\n Additionally, unlike its federal counterpart, the Pennsylvania rule favors, but does not require, the parties to meet-and-confer on e-discovery before the commencement of discovery. The note to the amended rules states that parties may consider electronic searching, sampling, cost sharing, and non-waiver agreements, but does not require any party to do so.<\/p>\n Under the amended Pennsylvania rules, the parties, and the Court, may address electronically stored information differently depending on the financial risk and the varying complexity of the case. In this regard, with the exception of officially recognizing electronically stored information as a discoverable item, the amended Pennsylvania rules are not that new.<\/p>\n For Further Information<\/strong><\/p>\n If you have any questions, please contact Sandra A. Jeskie<\/a> or Ryan E. Borneman<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" The Supreme Court of Pennsylvania recently amended the Pennsylvania Rules of Civil Procedure to officially include the discovery of electronically stored information. The amended rules become effective August 1, 2012. Changes to Rules Amended Rule 4009.1 includes \u201celectronically stored information\u201d among the list of items a party may request. The person requesting electronically stored information … <\/p>\n