Max Kennerly On The New Pennsylvania Rules Of Civil Procedure Relating To Electronic Discovery

Effective Aug. 1, 2012, the Pennsylvania Rules of Civil Procedure will include, for the first time, rules specifically relating to electronically stored information. The amendments differ from the corresponding Federal Rules, adopting a "proportionality" approach that empowers judges to craft relief that fits the circumstances. In this Emerging Issues Analysis, Maxwell S. Kennerly, a plaintiff's attorney at The Beasley Firm in Philadelphia and the author of LexisNexis Practice Guide: Pennsylvania Civil Discovery, discusses the changes.

He writes:

"The new Rules leave wide room for judicial discretion (and attorney creativity), and do not include either a requirement that parties meet and confer nor any 'safe harbors' for inadvertent spoliation. The amendments partly track the corresponding Federal Rules of Civil Procedure but, importantly, the explanatory comment specifically rejects the incorporation of federal jurisprudence into the new Pennsylvania Rules. The Rules specifically encourage (but do not require) close cooperation by opposing counsel on electronic discovery, including specific recommendations on limiting time and scope and on reaching agreements such as on cost-sharing and non-waiver. Finally, and perhaps most importantly, the new rules include a detailed explanatory comment providing for a 'proportionality standard' in evaluating requests for electronically-stored information, giving courts wide latitude to resolve electronic discovery issues in the manner the court believes best suits the specifics of the case.

"The primary amendments to the rules, other than the new explanatory comment, are changes to Rule 4009.1 and 4009.11. . . .

"As more than one court had already predicted, 'the proposed amendments indicate that the discovery of electronically stored information (ESI) will be governed by the same considerations governing other discovery.' Zimmerman v. Weis Mkts., Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Northumberland County, May 19, 2011) [enhanced version available to subscribers]. This prediction is accurate: the new rules essentially apply to ESI discovery the same liberal standards previously applicable to requests for documents, but with the additional explicit proportionality analysis. Practitioners are advised to review LexisNexis Practice Guide: Pennsylvania Civil Discovery Chapter 4, which discusses requests for production of documents."

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