Professor Eileen A. Scallen on the New Minnesota E-Discovery Rules: The Times They Are A-Changin'

Professor Eileen A. Scallen on the New Minnesota E-Discovery Rules: The Times They Are A-Changin'


Minnesota was quick to follow the federal lead in adopting amended Rules of Civil Procedure in 2007 to account for new legal and practical issues arising from the discovery of electronically stored information (ESI). Minnesota has entered the brave new world of "e-discovery." Professor Eileen Scallen examines the impact of the new rules and reviews Minnesota e-discovery practice. She writes:
 
     Here is the essence of the 2007 amendments to Minnesota Rules of Civil Procedure 16, 26, 33, 34, 37, and 45, dealing with ESI:
 
Pretrial Scheduling Issues. Minn. R. Civ. P. 16.02 (Pretrial Conference) and Minn. R. Civ. P. 26.06 (Discovery Conference) allow, but do not require, courts to address ESI issues in the discovery conference and the pretrial scheduling orders. These amendments allow the court to incorporate agreements reached by the parties to minimize the risk of waiver of claims of privilege or work product protection. For example, parties may want to allow documents to be reviewed or sampled, to permit the requesting parties to assess the reasonable need for further production but without prejudice to any privilege claims. The rule amendments authorize the court to incorporate these “sneak peek” agreements but do not weigh in on whether such “peeking” could be grounds for waiver of privilege or work product protection.
 
Protective Orders and Inadvertent Disclosure. Minn. R. Civ. P. 26.02 contains two significant amendments:
 
o The rule permits a responding party to identify ESI that is “not reasonably accessible because of undue burden or cost.” If a responding party raises this objection, the party seeking discovery may bring a motion to compel, forcing the responding party to prove the undue burden or cost of accessing the information. . . .
 
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     Minnesota was one of the first states to follow the federal lead in amending its discovery rules to account for ESI. The federal rule amendments became effective December 1, 2006. Minnesota’s amended rules were effective July 1, 2007, and have slightly different numbering, but are substantively identical to their federal counterparts (Minnesota does not have a counterpart to the mandatory initial disclosure provisions of Fed. R. Civ. P. 26(a), which now encompass ESI). Thus, one can safely predict that Minnesota courts will turn to federal court interpretations of the rules for guidance, for although there are no published Minnesota cases regarding ESI, there is a growing number of federal cases addressing the issues raised by ESI.
 
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     The major emphasis of the e-discovery amendments to the Minnesota Rules of Civil Procedure is that ESI issues are best dealt with through consultation, negotiation, and agreement with opposing counsel. The rules for the discovery conference order (Minn. R. Civ. P. 26.05) and pretrial scheduling order (Minn. R. Civ. P. 16.02) both strongly reflect this intent. The rules reinforce the role of planning by their willingness to incorporate agreements by counsel which allow for sampling or “quick peeks” of information that has not been pre-screened for privilege so discovery can be organized in a cheaper and more efficient manner and for “claw-back” agreements, which allow for the return of documents discovered to be privileged after production. Although these procedural devices do not alter the rules of selective privilege waiver and inadvertent production, courts will likely modify those doctrines to uphold the value of these agreements to further the goal of cooperative, efficient discovery.