On Jan. 1, 2011, Wisconsin’s new civil procedure rules governing electronic discovery go into effect.
Here’s eight things to know.
No. 1: If you’re not ready, you’re running a major malpractice risk.
E-discovery isn’t happening in the majority of cases on a circuit court judge’s docket — yet, says Milwaukee County Circuit Court Judge Richard J. Sankovitz. It’s not even on most judges’ radar screens – yet, he adds, once again.
“The Judicial Council is just being very, very responsible in trying to get these rules in place before we get to the horizon,” says Sankovitz.
But, as federal-court practitioners can attest, once the ball is in motion in with e-discovery, inertia will likely bring it your way.
Patrick J. Murphy, of the Milwaukee headquarters of Quarles & Brady LLP, says, “I don’t expect it will ever be the case that every, or even the majority, of state-court litigation will involve significant e-discovery issues.
But setting the record straight before problems exist isn’t a bad idea.”
No. 2: The rules are a work in progress.
The bound, paper version of the Wisconsin Statutes for 2011-2012 will be subject to additional amendments to the rules, to be posted online. Courts and practitioners should monitor the Supreme Court’s web site in the coming weeks.
No. 3: The new rules are not just something Wisconsin litigators need to understand, and some of the rules’ related obligations are already in effect under the common law.
If you never litigate, but counsel a business client or government entity, if you haven’t already, you need to talk to these clients about their records-retention policies and the duty to preserve documents in the face of pending or threatened litigation.
A “litigation hold,” already required under case law, may need to be imposed as soon as it’s reasonably clear that litigation is probable, to prevent the loss of any relevant data.
Businesses regularly delete data in the ordinary course of operations. The risk of spoliation sanctions is minimized by the new sec. 804.12(4m), which provides a “safe harbor” for the deletion of electronically-stored information, if the information that’s deleted or otherwise destroyed was done so as the result of the routine computer operations.
“I think this gives a number of clients and in-house counsel some peace of mind,” says Murphy.
“There are a whole lot of businesses who don’t have in-house counsel, who, in the early stages before they’ve retained outside counsel, are making critical decisions about litigation holds, and the safe harbor provides them some level of protection from litigation about spoliation when they’re acting in good faith.”
Still, the safe harbor involves a fact-intensive determination and clients should err of the side of preservation. Sankovitz offers the example of a franchisor who e-mails an out-of-state franchisee. While everything might seem fine in their relationship at the time, disputes can arise quickly. If it was foreseeable that the matter addressed in that e-mail could end in litigation, it should have been preserved.
No. 4: The new rules mirror the federal rules in many ways — notably, both define a discoverable “document” very broadly, and both allow the requesting party to ask for data in a particular format — but there are substantial differences, too.
Timothy D. Edwards, of Axley Brynelson LLP in Madison, would have preferred the justices adopt rules closer to the federal rules. Still, the court for the most part got it right.
“The format of the document has to be identified up front, and then the other party can object to the format, and the objection can be dealt with right away. That, I think, is a very helpful way of streamlining things.
“Sometimes you request data and you want it in its native form, with all the metadata that goes along with it.
Other times, you’re happy with PDF copies. If you require people to talk about this up front, you can save the parties a lot of time and money, and the court did that.”
No. 5: You’re going to have to be computer-savvy enough to be able to meaningfully address matters such as all the forms in which information is stored on your client’s system (to include native files and metadata), and the various forms of production (paper, PDFs, searchable formats, etc.).
If some of these terms leave you scratching your head, you need to educate yourself. Look at this as an opportunity to improve your advocacy, says Murphy.
“As a practical matter, you’ll have to be up to speed because so many of your claims or defenses will be dependent on it.”
No. 6: You must “meet-and-confer” in your e-discovery cases before any formal discovery requests are served.
This rule was the result of extensive debate on Sept. 30, the most recent high court conference dedicated to finalizing the rules.
It was one of the more controversial issues because it adds a layer of cost. However, proponents countered that ultimately it saves money because it narrows the focus of what’s planned for discovery, resolves some issues early on, etc. Their position carried the day, and Wisconsin will become the first state of the approximately 25 others that already have e-discovery rules to require meet-and-confer without initial court supervision.
Meet-and-confer under new sec. 804.01(4m) is not the same as the court-supervised discovery that occurs in federal court. In addition, meet-and-confer can be fulfilled in some cases simply with a telephone call among counsel.
No. 7: You can request cost-shifting, but there’s no new e-discovery rule spelling it out. Rather, under the existing Protective Order rule, sec. 804.01(3), you can seek cost-shifting, arguing that the request poses an “undue burden,” and the court can make its ruling using new comments to the Protective Orders rule that offer seven criteria for consideration.
This was also controversial. Edwards says cost-shifting is often the top concern for his clients because, “In some cases, the e-discovery can consume the whole litigation.” In fact, more than once, the cost of e-discovery has played a significant role in settlement discussions — and it doesn’t seem right to him that the merits of his clients’ case may go unaddressed for that reason alone.
The new rules’ comments mirror the federal rules’ multi-factor test for when information is not “reasonably accessible.” They are:
1) The specificity of the discovery request;
2) The quantity of information available from other more easily accessible sources;
3) The failure to produce relevant information that seems likely to have existed but is no longer available;
4) The likelihood of finding relevant, responsive information that cannot be obtained from other more easily accessed sources;
5) Predictions as to the importance and usefulness of the information sought;
6) The importance of the issues at stake in the litigation; and
7) The respective resources of the parties.
Murphy says having the cost-shifting criteria in the comments is better than not having them at all, but he would have preferred they be part of the rules. When they’re relegated to comments, judges have more discretion as to the level they’ll apply them.
No. 8: You won’t find a “clawback” provision in the new rules.
FRCP 26 (b)(5) confers a presumptive privilege on a party to retrieve attorney-client communications or work-product materials that have been inadvertently disclosed. It’s known as the “clawback,” and the justices declined to put in the new Wisconsin rules.
The federal rules rely upon Federal Evidence Rule 502, which codifies that inadvertent disclosures don’t operate as a waiver. But Wisconsin has no such evidence rule counterpart.
The Wisconsin Judicial Council is now studying whether the state should have a version FRE 502, notes Sankovitz. So the clawback may return.
Murphy says that often in his federal practice, attorneys agree up front to a reciprocal clawback — in fact, standard agreements have evolved in certain categories of cases, such as trade secrets. Until a clawback is put in place in the new rules, you might want to suggest stipulating to it.