May 4, 2010 − The Wisconsin Supreme Court last week approved a petition by a 4-3 vote to create and amend statutes relating to electronically stored information (e-discovery), effective Jan. 1, 2011.
The court at its April 28 open administrative conference adopted amended petition 09-01 – filed by the Judicial Council (council) – but voted 5-2 for an amendment that will require parties to “meet and confer” on discovery issues early in the case. As a condition to this amendment, however, the court voted to hold another public hearing in the fall to reconsider the meet and confer issue. A final order has not been released.
In response to what the council called “the unavoidable increase in the discovery of electronically stored information,” it proposed amendments to the Wisconsin rules of discovery through petition 09-01 in April of 2009.
The council based the proposal on the Uniform Rules on the Discovery of Electronically Stored Information and the 2006 amendments to the Federal Rules of Civil Procedure.
On Jan. 21, 2010, the court held a public hearing and administrative conference and requested that the council file an amended petition to address the concerns discussed as well as the court’s desire for language more closely mirroring the federal discovery rules. The council filed an amended petition on March 19, 2010.
The new rules are aimed to increase efficiency and predictability and reduce the costs associated with discovery. In general, the rules encourage courts to be more active in managing electronic discovery and production; provide an amendment to recognize that business records may be in electronic form; and outline procedures for requests.
Meet and confer provision
Debate at the Jan. 21 public hearing addressed the absence of the so-called “meet and confer” provision that enables parties to hash out discovery issues early in the case, even before a scheduling conference.
The council’s amended petition included a discretionary meet and confer provision (804.01(4m)) – one that is not required unless a court orders one upon request.
Specifically, the provision states: “At any time after commencement of an action, on the court’s own motion or the motion of a party, the court may order the parties to confer by any appropriate means, including in person, regarding …” certain discovery issues.
The court voted 5-2 for an amendment to mandate a meet and confer. Under this amendment, parties must meet and confer in all cases in which discovery is involved, not just ones involving e-discovery. The justices debated the efficiency of requiring a meet and confer in all cases, even ones that do not demand production of large volumes of discovery.
However, the issue is not resolved. The court will hold a public hearing in the fall of 2010 to reconsider. It is anticipated that the final rules will contain a comment to this effect.
Claw back provision
Debate at the Jan. 21 public hearing also addresseded the absence of a “claw back” provision allowing recovery of privileged information that is inadvertently disclosed, and protection against discovery of such information in subsequent litigation. The council chose not to include such a provision in the amended petition, retaining its position that a waiver is more properly addressed in other rules of evidence.
Scope of proposed electronic discovery rules debated at public hearing – Feb. 3, 2010
Proposed Rules for Electronic Discovery (Wisconsin Lawyer, December 2009)