POSTED: Monday, February 1st, 2010 at 1:00 am

BY: dmc-admin

Wisconsin may soon adopt new rules to deal with the discovery of electronically stored information.

According to the Wisconsin Judicial Council, about 25 other states are considering or have already implemented rules incorporating elements of the 2006 amendments to the Federal Rules of Civil Procedure pertaining to e-discovery.

The Judicial Council recently presented a petition to the state Supreme Court seeking many of the same updates, including enabling parties to specify the form or forms in which electronically stored information is to be produced and a “safe harbor” provision that would prohibit court sanctions if a party fails to produce electronically stored information lost as a result of routine operation of a system

The Council is also recommending that business records be allowed to be produced in electronic form and that parties be permitted to request an opportunity to test or sample materials sought in addition to inspecting and copying them. However, the petition includes commentary from the Federal Rules of Civil Procedure Advisory Committee notes stating that “courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”

While the court did not formally adopt the changes after its Jan. 21 administrative conference, the justices expressed general support and directed the Judicial Council to include additional commentary from the advisory committee to more closely mirror the federal rules.

Not enough?

Some attorneys are concerned that the proposed revisions don’t go far enough in providing guidance for attorneys dealing with e-discovery issues.

For example, Milwaukee business lawyer Mark F. Foley, of von Briesen & Roper SC, complains that the rules do little to address the high cost involved in mining for electronically stored information.

Further, Foley said, the changes don’t address “fundamental problems involving the attorney-client privilege.”

He noted that the Wisconsin proposal does not include a “claw-back” procedure, which allows a party that inadvertently produced privileged information to still claim it is protected material.

Foley said that in cases with large amounts of electronic documents, a claw-back procedure is particularly valuable.

“You try and find all the privileged documents, but [sometimes] something gets through anyway,” he noted.

Business attorney William J. Mulligan of Davis & Kuelthau SC asserted that the claw-back rule has proven successful at the federal level and should be included in the Wisconsin rules.

He said it would help cut down on delays in producing documents and limit the amount of material that would have to be searched in high-volume cases.

“In particular, it does not require the producing party to do a massive manual inspection of all things,” Mulligan said. That’s especially important “in this day and age, when more and more records are electronic.”

But Foley said that a claw-back procedure alone isn’t enough to solve the issue of attorney-client confidentiality in e-discovery.

“The problem is once a document is out, if opposing counsel is a hostile person, while they might agree not to use it, that doesn’t change the underlying fact that the communication is no longer confidential,” he said.

The solution, suggested Foley, is to amend the state’s rules of evidence to provide that if there is a kind of inadvertent discovery as a matter of law the attorney-client privilege has not been waived.

Attorney April M. Southwick helped develop the petition for the Judicial Council. She said there are no plans to add a claw-back procedure at this point.

But she said the Judicial Council will address the issue in its recommendations on changes to the state’s evidentiary rules, which are currently underway.

“We view it as a package deal, and a claw-back procedure wouldn’t be sufficient without changes to the rules of evidence,” Southwick said.

No meet and confer

Another aspect of the federal rules that was not included in the Wisconsin proposal is mandatory “meet and confer” sessions to discuss discovery issues early in a case.

Southwick said that at this point, there are simply not enough cases in the state involving substantial e-discovery to justify that a discovery conference take place in every instance.

“We just didn’t feel it was worth putting the extra burden on every case that comes through court just for the benefit of the relatively small amount of e-discovery cases we’re seeing,” she said.

Foley conceded that complex e-discovery issues only tend to emerge in larger business cases or recurring litigation.

But he said having the meet and confer procedure would remind attorneys to evaluate e-discovery issues at the outset of cases, instead of later when they can be more costly.

“Is a typical personal injury slip and fall going to have a high number of documents in any form? No,” Foley said. “That doesn’t mean we don’t need rules like this for some of us who handle everyday matters.”

Based on his experience in federal court, Mulligan said meet and confers often help expedite proceedings and can be cost-effective.

He noted that in some cases, they can be conducted over the phone rather than in person.

“One of the benefits of having meet and confers is so parties can propose to the court that certain discovery be done and certain other things not be done,” Mulligan added.

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