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Guide to E-Discovery in the 50 States

The National Center for State Courts has published a guide detailing how rules governing electronic discovery are applied in the 50 states. Best Practices for Courts and Parties Regarding Electronic Discovery in State Courts includes sections on the areas in which state courts generally agree on the preservation and production of ESI, and a section which lists key electronic discovery rules in each state.

There is a consensus among state courts that both parties making claims and those defending them have an obligation to make reasonable efforts to preserve data needed for foreseeable litigation. A litigation hold must be issued to relevant custodians. Parties may be obligated to provide data they have access to in the cloud. Parties are not obligated to retain data that is overwritten by the routine operation of information systems. Under the 2015 amendments to the Federal Rules of Civil Procedure, the steps taken to preserve ESI must be proportional to the needs of the case. Punitive measures should only be imposed for the failure to preserve ESI when there is culpable intent.

Parties need only produce ESI which is relevant and proportional to the needs of a case. When making requests and objections to those requests, parties have an obligation to cooperate. Single PDFs can be an acceptable format for small productions. A party receiving inadvertently produced privileged material must notify the producing party of their discovery of this information. Federal Rule of Evidence 502 addresses such inadvertent production of privileged documents. Some courts have required transparency with respect to the black box operations used in technology assisted review. A search protocol can help prevent disputes between the parties.

Arizona - a pending petition to amend the Arizona Rules of Civil Procedure does not include changes regarding proportionality adopted in 2015 amendments to the FRCP.

California - an Electronic Discovery Act limits discovery on the basis of both proportionality and accessibility.

Colorado - has not adopted the amended version of FRCP 37(e) or limited the production of inaccessible ESI as specified by FRCP 26(b)(2)(b).

Florida - has not resolved whether or not there is a pre-litigation duty to preserve.

Illinois - proportionality considerations were added under Illinois Civil Rule 201(c)(3).

Massachusetts - did not adopt a proportionality standard after the December 2015 FRCP amendments, but instead took a wait and see approach.

New Jersey - Rule 4:18(c) requires certification that a good faith search was made for ESI, and imposes a duty to supplement.

Pennsylvania - the Pennsylvania Supreme Court's Rules of Civil Procedure prohibit under Rule 4011 bad faith discovery or discovery which causes unreasonable annoyance, embarrassment, oppression, burden or expense.

Texas - in Brookshire Bros. v. Aldridge the Supreme Court of Texas ruled that evidence of spoliation cannot always be submitted to juries.

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