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A wave of state court systems are adopting electronic discovery rules as local lawyers struggle with the costs and uncertainty of e-discovery in an expanding range of cases. Most of the states’ rules were rolled out amid debate about the electronic discovery amendments to the Federal Rules of Civil Procedure, which kicked in on Dec. 1, 2006. New rules in Idaho and New Jersey took effect last year, while rules in Indiana, Minnesota, Montana and New Hampshire began this year. Arizona’s rules are effective starting on Jan. 1, 2008. Proposed rules are on the table in Maryland, Nebraska and Ohio. In addition, committees at the California, Illinois and Tennessee courts and the Washington State Bar Association are studying the issue. Lawyers accept state electronic discovery rules as inevitable and potentially helpful for clarifying thorny issues about cost and the format for delivering requested data, particularly since e-discovery issues are popping up in all types of cases, including divorce, personal injury and real estate and construction. Electronic discovery refers to how litigators collect information stored in computer hard drives, e-mail, computer backup tapes and other digital formats. “Attorneys will have to get up to speed,” said Ken Withers, director of judicial education and content at the Sedona Conference, a nonprofit legal and policy think tank based in Sedona, Ariz. “If they thought they could avoid e-discovery by avoiding federal court, they’re going to have to think again quickly.” Quirks and costs But lawyers are already predicting that state quirks and loopholes will spawn skirmishes and require case law interpretations. Also, smaller firms are wrestling with the issue of cost, such as searching the country for experts on long-obsolete programming languages. Practitioners are still struggling with the price tag for producing electronically stored documents, such as reviewing a computer hard drive, said David Herr, who heads the appeals department at Maslon Edelman Borman & Brand in Minneapolis and serves on a rules committee for the Minnesota Supreme Court. “The amount of data could be huge,” Herr said. “They wouldn’t order you to produce a million pages of documents from a warehouse [but] in the electronic era they do [from computer systems].” In New Jersey, the e-discovery rules lack specific automatic-disclosure provisions requiring the parties to tell the other side which documents have been electronically stored and which they’re willing to produce voluntarily, said Paul D’Amato of the D’Amato Law Firm in Linwood, N.J. New Jersey’s new rules have been on the books since September 2006. D’Amato, who represents all types of accident victims, said the challenge for plaintiffs’ lawyers is to figure out what documents and information the defendant might have as soon as a client retains the firm. “In our practice, the challenge has been in each and every case: What does that defendant have that we should immediately put them on notice what they should preserve?” D’Amato said. “The federal courts are a little ahead in this area.” D’Amato expects New Jersey case law to develop to address defendants’ duty to preserve certain types of documents. “What happens if that defendant ignores the letter or the insurance company doesn’t tell the insured you have to preserve the electronically stored information?” D’Amato said. “Then you get into spoliation [destruction of evidence] issues,” he said. Degree of sanity Indiana’s rules, which took effect on Sept. 10, should add some sanity to the process, said James Dimos, who chairs the intellectual property group of Indianapolis-based Locke Reynolds, and works on business torts, breach of contract and trade secret cases in state court. One provision, for example, specifies that parties won’t face sanctions for data lost during routine, good-faith operations, Dimos said. “If it happens before you got your litigation hold � or notice of duty to preserve electronic documents and other data � it adds some protection and more sanity to the process,” Dimos said. Yet Dimos acknowledged that another provision that allows the requesting side to specify the format for producing the electronically stored data “opens the door to another possible appearance before the court. “It harkens back to the days when you used computer cards for data, and people argued about whether you should just produce the cards or in a way they can be read by a machine,” Dimos said. “In some respects it’s new ground, but at least it’s been prepared by previous cases.” Minnesota’s new rules, which took effect on July 1, sailed through the state Supreme Court approval process without opposition, said Herr. But additional rules may be necessary to stem separate litigation or protracted motion battles within cases regarding discovery issues, Herr said. “I’ve seen cases where it seemed clear to me that the parties were serving discovery requests to see if they could find the occurrence of some spoliation of evidence,” Herr said. “Lawyers are figuring out how to turn electronic discovery into a sideshow.” New Jersey divorce lawyer Charles Abut, a solo practitioner in Hackensack, said electronic discovery concerns arose long before the state’s rules were written, but since the rules have taken effect it is critical to adjust cost estimates upward to cover possible contingencies. Electronic discovery requests could spawn court battles over costs, Abut said. The opposing party might ask the court to approve an order capping costs at a certain level or an agreement that both sides split the costs, he said. “There’s no silver bullet for how you do it,” Abut said. Electronic discovery also forces solo practitioners to scour the country for experts in old programming languages, Abut said. “It’s not usual to have two to four sets of experts in different parts of the country to produce and assemble [the data],” Abut said.

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