James R. McCullagh on Washington State Law and E-Discovery Requirements

James R. McCullagh on Washington State Law and E-Discovery Requirements


The explosion of electronically stored information ("ESI") is well documented and continues to accelerate. While e-discovery has become a regular and required component of federal litigation since the 2006 amendments to the Federal Rules of Civil Procedure, states have been less uniform in their approach to e-discovery issues. Many states, including Washington, have not yet addressed ESI. In addition to the lack of state law addressing e-discovery obligations in Washington, there is little case law addressing this topic. A Washington State Bar committee is considering whether to propose amending the Washington Civil Rules to address e-discovery issues. James R. McCullagh reviews the few reported Washington cases that touch on the subject of e-discovery, summarizes the status of proposed Washington state rules, and addresses fundamental e-discovery issues that should be considered when litigating in Washington courts. He writes:
 
     In Bedford, LLC v. Safeco Ins. Co. of America (140 Wn. App. 1033 (9/24/2007, unreported)), plaintiff was granted permission to examine defendant's consultant's computer system after learning of the presence of a draft report that had not been produced by defendant. Plaintiff eventually located the draft report on a backup file on the penultimate day of trial and moved for discovery violation sanctions on the grounds that the defendant's failure to produce the report prejudiced plaintiff's case. The Court of Appeals noted that "electronic files and experts' draft reports are generally discoverable, but the failure to produce a responsive document is not necessarily a violation of discovery rules. The court expressly noted that there was no requirement that a testifying expert witness retain all electronic drafts, including "those that were overridden or subsumed during the drafting process." The court did not expressly refer to the Federal Rules, but its analysis is consistent with Federal Rules of Civil Procedure 26(b)(2)(B), which does not require a party to provide ESI "from sources that the party identifies as not reasonably accessible because of undue burden or cost" (Fed. R. Civ. Proc. 26(b)(2)(B)). Thus, this unpublished case, while having no precedential value, may be indicative of Washington courts’ willingness to look to the federal rules for guidance in matters related to e-discovery.
 
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     . . . [S]ome entities, such as the Washington State Association of Prosecuting Attorneys and the Washington State Association of Municipal Attorneys, are not in favor of adding ESI provisions at this time. These groups and others believe that ESI amendments are premature for a variety of reasons including: (1) the state of advancing technology and the rapidly evolving body of federal case law; (2) state courts are not in the same position as federal courts because they address inherently different questions (more unsophisticated litigants and a wider variety of problems); and (3) state courts have not experienced problems with electronic discovery similar to the that which was the impetus for the federal ESI amendments. There is also concern with the often substantial costs associated with ESI. Some groups are concerned that especially when the discovery burden is asymmetric, the costs of collecting, reviewing, and producing ESI can alter the litigation playing field, and have suggested that Washington adopt mandatory cost shifting when the requesting party demands ESI that is not reasonably accessible. Other groups are concerned that cost shifting will add further hurdles for litigants with limited resources. The cost-shifting issue has received much attention and appears to be one of the major issues that the rules committee will need to address, if it proceeds with proposing ESI amendments to the civil rules.
 
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     Since the scope of discovery in state courts is similar to that permitted in federal courts, it is likely that Washington courts will consider federal law when grappling with e-discovery issues. In addition to the guidance provided by federal rules and case law, state courts may also refer to the "Guidelines for State Trail Courts Regarding Discovery of Electronically Stored Information" ("Guidelines") when addressing ESI issues. The Guidelines were developed by the Conference of Chief Justices Working Group on Electronic Discovery in August 2006. (available at http://www.ncsconline.org/images/EDiscCCJGuidelinesFinal.pdf). A review draft of the Guidelines was sent to each state's chief justice and a wide array of lawyer organizations and e-discovery experts in late 2005. Comments related to the draft were reviewed by a working group of the Conference of Chief Justices and incorporated into the final Guidelines.