E-Discovery Rules Could Be Coming For Wisconsin
Although Wisconsin’s rules of civil procedure don’t currently deal specifically with e-discovery, the spectre of continuing increases in the number of cases that require it may force action sooner rather than later. Jack Zemlicka of the Wisconsin Law Journal writes:
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.”
One of the major problems with the current proposal, points out Zemlicka, is that there is no claw-back provision. Given the volume of production and the time required to review the information, claw-back has become a mainstay of the federal system. Of course, nothing official has happened yet, but stay on your toes — it’s sure to impact you one way or another.
Photo courtesy Robert S. Donovan’s Flickr gallery under this creative commons licence.
