Key to managing the risks and costs associated with electronic discovery in state court is resisting the common misunderstanding that each state has, at least in substantial part, followed the lead of federal courts. Such an assumption may increase risks and costs should litigation arise. Indeed, development of e-discovery rules in state court has been far from uniform, with states pursuing a number of divergent paths to govern this burgeoning area.
Generally, states have substantially adopted the Federal Rules of Civil Procedure; enacted a unique set of rules that are an amalgam of a variety of sources; or ignored the issue altogether. The consequences to parties operating in multiple jurisdictions are far-reaching, as satisfactory document preservation and production of electronically stored information (ESI) in one state may be entirely unacceptable in another. Accordingly, awareness of these rules before a dispute arises is essential. For a broad understanding of how states are approaching e-discovery in each of the three categories, examples of each are discussed below.
