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Wisconsin Proposes Amendments to Wisconsin Rules of Civil Procedure to Address Electronic Discovery
Published: November 12, 2008
Authors: John C. Mitby and Timothy D. Edwards
Introduction
The Evidence and Civil Procedure Committee of the Wisconsin Judicial Counsel has proposed a number of amendments to Wisconsin's discovery rules as they pertain to electronic discovery. This proposal tracks similar developments in other jurisdictions and recent amendments to the Federal Rules of Civil Procedure as they relate to electronic discovery. While a number of changes are proposed in Wisconsin, the changes are not identical to the recent amendments to the Federal Rules of Civil Procedure. Even so, the proposed rules encourage the court and the parties to address issues surrounding electronic discovery in a new, more focused fashion.
Overview
For more than a decade, the Court system has struggled with an increase in the discovery of electronically stored information. This is not by accident. As Chief Justice Abrahamson has explained, "most information is kept in digital form, and discovery, preservation and production of electronic information is one of the leading issues facing not only corporate America, but also government." [1] Recent studies suggest that approximately 92% of new information is stored on magnetic media. [2] In recognition of this reality, the drafters of the Federal Rules of Civil Procedure enacted a number of specific amendments to the discovery process that address issues surrounding the discovery of electronically stored information. [3] Wisconsin now follows suit.
In summary form, the proposed amendments to the Wisconsin Rules of Civil Procedure are designed to (1) encourage courts to be more active in managing electronic discovery and production, (2) allow for the production of business records in electronic form, (3) place the burden on the requesting party to specify the form in which electronic discovery is to be produced and, (4) impose a safe harbor for a party who has lost electronically stored information as a result of the routine good-faith operation of an electronic information system.
At the outset, the proposed amendments have been written with a purpose. According to the drafters, "the proposed rules are intended to provide consistency and predictability in the discovery of electronically stored information." In addition, "they are intended to reduce the economic burden that can result from the discovery involving the enormous volume of electronically stored information." [4] Simultaneously, the proposed rules are not intended "to prevent discovery regarding any manner, not privileged, which is relevant to the subject matter involved in a pending action." [5] This balance carries forward into the proposed amendments.
The first proposed substantive change relates to calendar practice. Pursuant to Wis. Stat. § 802.10, the proposed amendment requires the parties to address the need for discovery of electronically stored information at the beginning of the case. This inclusion is intended to "alert the court to the possible need to address the handling of discovery of electronically stored information in the litigation if such discovery is expected to occur." [6] The proposed amendment furthers this policy by inviting the court to address any issues pertaining to electronic discovery that will facilitate the "just, speedy and inexpensive disposition of the action." [7] Clearly, this amendment is designated to enlist the court's involvement in the "e-discovery" process.
The proposal also includes an amendment to Wis. Stat. § 804.09, which relates to the production of documents during civil litigation. First, the proposed rule expands the scope of evidence that can be obtained through a document request to include "electronically stored information, sound recordings and images stored in any medium from which information can be obtained electronically either directly or, if necessary, after translation by the responding party into a reasonably usable format." [8] Here, the requesting party is invited to specify the "forms in which electronically stored information is to be produced." [9] In response, the producing party may "state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form was specified in a request, the party shall state the form or forms it intends to use." [10] Notably, if the form of production is not specified by agreement or a court order, "the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a reasonably usable format. [11] The overall purpose of these related provisions to encourage the parties to identify the format in which electronically discovered information is to be produced and to provide a default mechanism if the parties fail to reach an agreement regarding the form.
The new rules also create a "safe harbor" for parties that are using a document retention policy with respect to their electronic records. In fact, the proposed rules clearly state as follows: "[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system." [12] This is a very important provision that should encourage businesses to implement a document retention policy that is consistently enforced. In fact, the rules actually reward a party who elects this option as they specifically provide a safe harbor for a party that destroys electronically stored information through the "good faith" utilization of a document retention policy. Under these provisions, a party cannot be sanctioned for destroying documents pursuant to a document retention policy that is consistently enforced, provided that the discussion does not occur after litigation is reasonably foreseeable.
Finally, the proposed amendments change the process for responding to a subpoena. Under the proposed amendment to Wis. Stat. § 805.07, here the proposed rule reduces the burden on the responding party by permitting him or her to require the requesting party to conduct an inspection test or sampling of the evidence. Through this process, the responding party does not bear the burden of producing electronically stored information when it would be burdensome or costly to do so. This policy is carried forward throughout the rule, which makes it clear that a party or attorney "responsible for issuing and serving a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." [13] The proposed amendment also provides additional protections to a person that is subject to a subpoena, allowing the responding party to produce electronically stored information in a "form or forms in which it is ordinarily maintained or in a reasonably usable form or forms." [14]
Conclusion
The proposed amendments to the Wisconsin Rules of Civil Procedure are much different than the 2006 amendments to the Federal Rules of Civil Procedure. They allow for more flexibility in decision-making by the Court and they impose a burden on counsel to discuss and resolve e-discovery issues throughout the dispute. Interestingly, the proposed amendments do not specifically address cost-shifting burdens that can surface during the course of discovery when electronic evidence is involved. They do, however, make it clear that all parties should have a document retention policy in place that is consistently applied on a good faith basis. These proposed amendments are a good start as the law continues to change in the ever-evolving electronic era.
John C. Mitby is Managing Partner of the firm and represents numerous businesses, engineering firms, financial institutions, nursing and elder care homes, and hospitals. For more information, contact Mr. Mitby at 608.283.6710 or jmitby@axley.com. Timothy D. Edwards is an attorney with Axley Brynelson, LLP. He can be reached at 608.260.2481 or tedwards@axley.com.
[1] See In Re John Doe Proceedings, 2004 WI 64, ¶ 62, 272 Wis. 2d 208, 680 N.W.P.2d 792(2004).
[2] How Much Information? (www.sims.berkely.edu/research/projects
)
[3] Recent Amendments to the Federal Rules of Civil Procedure Regarding Electronic Discovery.
[4] Proposed Wisconsin Rules of Civil Procedure Relating to Electronic Discovery, Introduction (2009).
[5] Id.
[6] Id. (Committee notes)
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. (Committee notes)
[12] Id.
[13] Id.
[14] Id.
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