Effective August 1, 2012, Pennsylvania became the most recent state to adopt amendments to its Rules of Civil Procedure addressing the scope of, and limitations on, discovery of electronically-stored information. You can read the order adopting the amendments here.
The amendments to the Pennsylvania Rules of Civil Procedure come more than six years after the Federal Rules of Civil Procedure were amended to address e-discovery. In that time, federal courts have developed a complicated body of law that has often confounded practitioners and jurists alike. Eschewing that complexity, Pennsylvania has essentially rejected much of the federal approach and adopted a more streamlined and "proportional" approach to e-discovery practice.
The amendments address the discovery of electronically stored information (“ESI”) through Requests for Production of Documents directed to parties under Rule 4009.11 and through subpoenas directed to non-parties under Rule 4009.21. The amendments also make clear that the limitations upon discovery contained in Rule 4011 apply with full force to e-discovery practice. Moreover, while the amendments do not specify a form of production, in the absence of a request for the production to be made in a particular form, amended Rule 4009.1 states a preference for ESI to be produced in the form in which it is ordinarily maintained or a reasonably usable form.
Because Pennsylvania has expressly rejected federal e-discovery law, Pennsylvania courts should be reluctant to, and pursuant to the commentary issued when the amendments were proposed, should refrain from, examining federal case law to resolve e-discovery disputes. Rather, Pennsylvania courts should handle e-discovery practice, and resolve e-discovery disputes, applying the same principles and precepts that govern traditional paper discovery in Pennsylvania. Nevertheless, as federal courts continue to be the driving force behind developments in e-discovery law, it is likely that the federal rules will have some influence on Pennsylvania’s e-discovery practice once the amended rules are implemented.
Stephen J. Finley, Jr. is an Associate on the Gibbons E-Discovery Task Force.