Aug 01, 2012

Pennsylvania Supreme Court Amends E-Discovery Rules

Amendments to the Pennsylvania Rules of Civil Procedure governing the discovery of electronic information, or e-discovery, will go into effect August 1, 2012. The amended rules clarify and possibly expand the obligations of individuals, business owners, and attorneys representing parties. Pennsylvanians should take the time to understand these rules before sending their next email, Tweet, Facebook status, or text message. After all, any of those communications could become an exhibit in litigation.

The amendments alter Rules 4009 and 4011, which govern e-discovery. Previously, the rules referred to this type of information as “electronically stored information.” The amendment broadens the scope of discovery by, instead, using the term “electronically created data, and other compilations of data from which information can be obtained . . . .” The new terminology suggests that a wide range of electronic data may be subject to discovery.

The amendments also underscore Pennsylvania’s commitment to establishing its own guidelines for e-discovery; Pennsylvania is just one of a small number of states that has chosen not to adopt the federal courts’ rules and interpretation of e-discovery rules. As jurisprudence on the subject develops, courts will determine whether emails, voice mails, text messages, and other electronic data are discoverable by looking to the following factors:

  • The desire for just, speedy, and inexpensive resolution of discovery disputes
  • The nature and scope of litigation
  • The relevance of the information and its importance to the court’s consideration of the case
  • The cost, burden, and delay imposed by requests for information
  • The ease of producing the information
  • Alternative means of obtaining the requested information
  • Any other factors relevant under the circumstances

If you have questions about how these amendments affect you or your business, how to preserve electronically created data, and what may be discoverable, please contact a member of the Litigation Group at Eastburn and Gray.

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