State Rules on e-Discovery as compiled by Thomas Allman

Alaska

The Alaska Supreme Court has adopted comprehensive e-discovery rule amendments which became effective on April 15, 2009.  They include requirements of early disclosure and meetings to discuss ESI discovery (but not preservation) prior to a scheduling conference.

Arizona

The Arizona Supreme Court adopted a comprehensive set of e-discovery rules which became effective on January 1, 2008. Unlike other states, the amended Arizona Rules require early disclosure of electronically stored information and explicitly authorize a court to enter pretrial orders requiring measures to preserve documents and ESI. See Schaffer and Austin, New Arizona E-Discovery Rules, 44-FED Ariz. Att'y 24 (February 2008)(discussing implications of fact that Arizona disclosure obligations are "far broader" than federal rule). Arizona has also provided modifications to its Family Court procedures to accommodate electronically stored information. Effective January 1, 2009, the Arizona Supreme Court explicitly amended its Rules of Family Law Procedure to conform to the e-discovery rules previously adopted for civil proceedings.

Arkansas

In January, 2008, the Arkansas Supreme Court adopted a rule allowing a presumptive claim of inadvertent production of privilege and work product information.  A copy of the text is available here.  Separately, Arkansas also adopted Evidence Rule 502(f) including provisions holding that  selective disclosure to the governmental does not operate as a waiver.  See R. Ryan Younger, Recent Developments, 61 Ark. L. Rev. 187 (2008). On March 9, 2009, the Supreme Court issued a proposed rule for public comment, which would apply if ordered or if parties agreed, embodying most aspects of the Federal Amendments. Comments on the Rule are due by May 15, 2009. A copy of proposed Rule 26.1 is available here.

California

The California Legislature has adopted and the Governor has signed comprehensive e-discovery amendments to the Code of Civil Procedure based on provisions originally recommended in an April, 2008 Report prepared by the California Judicial Council. The legislation was originally vetoed in September, 2008 as part of a budget disputes but reintroduced in December, 2008 and passed and signed in June, 2009 as an emergency measure to take effect immediately. The legislation differs in a number of respects from the Federal Amendments, including the fact that it does not explicitly acknowledge that no duty exists to produce information from an inaccessible source. See the analysis. The safe harbor provisions mirror Rule 37(e) but add that they apply to attorneys as well as parties and are not to be "construed to alter any obligation to preserve discoverable information." See the text of the final bill. In August, 2009, the Judicial Council of California amended Cal. Rules of Court 3.724 to include discussion of key e-discovey issues in preparation for case management conferences.

Colorado

The Committee on Rules of Civil Procedure at its January, 2008 accepted a report from a Standing Subcommittee to the effect that there was no need for e-discovery rule amendments. Subsequently, the subcommittee reported that there had been massive expense in complying with the federal e-discovery rules and that it was impossible to justify the likely incremental costs of such rules in Colorado. The Civil Rules Committee adopted the recommendation to leave the present systems unchanged. (Undated copy of Subcommittee Report on file with author)

Connecticut

The Connecticut Supreme Court Rules Committee decided not to take any action on proposed e-discovery rules during its current cycle ending in June, 2009. See here.

Delaware

A credible source with access to the relevant Delaware Bar Committee membership reports that the State Rules Committee sees no need to act at this time.

District of Columbia

The District of Columbia Court of Appeals has stayed the deadline for compliance with the Federal Amendments to enable the Superior Court and its advisory committee time to revise the local rules.

Florida

Credible sources report that there is no movement towards adoption of e-discovery rules at this time.

Idaho

Idaho amended its Rules of Civil Procedure in 2006 modeled on Tex. R. Civ. P. 196.4, but made the cost shifting of reasonable expense of any extraordinary steps a matter of discretion, not mandated as in Texas.

Illinois

Credible sources report that a subcommittee of the Judicial Conference is evaluating the adaptability of the 2006 Amendments to Illinois practice.

Indiana

The Indiana Supreme Court adopted E-Discovery Amendments largely replicating the Federal Amendments which were effective on January 1, 2008. See Lisa J. Berry-Tayman, Indiana Sate E-Discovery Rules: comparison to Other State E-Discovery Rules and to the Federal E-Discovery Rules, 51-APR Res Gestae 17 (April, 2008).

Iowa

The Iowa Supreme Court amended the Iowa Rules of Civil Procedure effective May 1, 2008 based on the 2006 Amendments. Effective on June 1, 2009, the Supreme court adopted Rule 5.502 to the Iowa Rules of Evidence based on the Federal Evidence rule 502.

Kansas

The Legislature adopted and the Governor signed Kansas Bill SB 434 to amend the Kansas Rules to largely mirror the Federal Amendments, effective July 1, 2008. The text is available on the Legislature website. See J. Nick Badgerow, ESI Comes to the K.S.A.: Kansas adopts Federal Civil Procedure Rules on Electronic Discovery, 77-AUG J. Kan. B.A. 30 (July/August 2008).

Kentucky

Credible reports indicate that the Guidelines for E-Discovery published by the Conference of Chief Justices are in use but no rule-making efforts are underway. 

Louisiana

Changes in 2006 involved limits on production from inaccessible sources are handled as objections, per the Comments and the process for claiming inadvertent production includes a waiver rule. Details. See William R. Forrester, New Technology & The 2007 Amendments to the Code of Civil Procedure, 55 La. B. J. 236, 238 (2008). In the 2009 session, a coalition of interested parties presented further amendments (SB 65) which resulted in a tie vote in the Senate and no legislative action.

Maine

The Supreme Judicial Court of Maine adopted e-discovery amendments based on the 2006 Amendments effective August 1, 2009. Minor corrections were quickly made with the same effective date. The Advisory Committee Notes are quite informative, especially in regard to defining "routine" and "good faith" in Rule 37(e).

Maryland

The Court of Appeals (the highest court) adopted e-discovery based on the provisions of the 2006 Amendments. Instead of requiring "good cause" for production from inaccessible sources, a party requesting discovery must establish that the "need" outweighs the burden and cost of "locating, retrieving, and producing" it. Also, the amendment relating to disclosure of privileged material includes a substantive waiver provisions.

Massachusetts

Credible reports indicate that the Advisory Committee on Rules is monitoring experience with e-discovery under the Federal rules and in the state courts to determine the need for rules.

Michigan

The Michigan Supreme Court has adopted e-discovery provisions similar to the 2006 Amendments.

Minnesota

The Minnesota Supreme Court adopted amendments to its Rules of Civil Procedure which largely mirror the 2006 Amendments. See Megan E. Burkhammer, New Turns in the Maze: Finding your Way in the New Civil Rules, 64-JUB Bench & B. Minn 23 (May/June 2007).

Mississippi

Mississippi adopted e-discovery amendments in 2003 to its Rule 26 ("General Provisions Governing Discovery").

Missouri

Credible reports indicate that the Judicial Rules Committee is considering the issue of the need for e-discovery rules.

Montana

The Supreme Court of Montana adopted amendments to its civil rules largely incorporating the 2006 Amendments in 2008, as amended, 32-APR Mont. Law 23 (2008).  See Montana Lawyer, Court Issues Major Rule Changes on Civil Procedure and Court Records, 32-MAR Mont. Law. 12 (March 2007).

Nebraska

The Supreme Court has adopted limited amendments to regarding discoverability and form of production of ESI effective in July, 2008.

Nevada

There are no current ongoing efforts to consider e-discovery rules.

New Hampshire

The Supreme Court has added a "scheduling conference" to its standing orders to discuss key e-discovery topics such as accessibility, costs, form of production and the need for and extent of litigation holds. More information.

New Jersey

The New Jersey Civil Rules, effective September 1, 2006, incorporate the provisions of the 2006 Amendments with certain minor exceptions. See details.

New Mexico

The Rules Committee is working on series of proposed e-discovery amendments based on the Federal Amendments.

New York

Legislative action was initiated on February 23, 2009 by Assembly Bill A06000. The bill is based on a N.Y. State Bar Association Report. Inaccessible information, which does need not be produced without a court order, need not be identified. Moreover, the safe harbor provisions are not limited (as is Fed. Rule 37(e)) to rule based sanctions. Separately, Rule 8 of the statewide rules of the Commercial Division of the Supreme Court (§202.70) now requires consultations regarding e-discovery issues prior to conferences. The Commercial Division Judges of Nassau county have now issued a unique order, applicable only in that court, which enhances the requirements of that order. See Vesselin Mitev, New E-Discovery Rules Help County Courts Manage Cases, New York Law Journal, February 19, 2009 (provides details for Rule 8(b)) In addition, the Chief Administrative Judge has apparently adopted an Administrative Order modeled on Rule 8(b) which is applicable in all Supreme and County Courts (§202.12) requiring discussions of e-discovery issues at the preliminary conference where the court deems appropriate.

North Carolina

A North Carolina State Bar Committee has proposed a number of innovative e-discovery amendments to the North Carolina Civil Rules, presumably to be considered at the next Legislative Session. The North Carolina Business Court included provisions relating to discussion of disputed e-discovery issues in their rules. See Rule 18.6.

North Dakota

The Joint Procedure Committee has adopted the 2006 Amendments without the provisions for "meet and confers" and scheduling conferences, effective March 1, 2008. Click here for more information.

Ohio

The Supreme Court adopted rules based largely on the Federal Amendments, with significant modification. The safe harbor provision includes factors for court use when deciding if sanctions should be imposed and the pre-trial discussion topics include the methods of "search and production" to be used in discovery.

Oregon

The Council on Court Procedures has thus far not identified discovery as a subject of rulemaking during this cycle

South Carolina

The South Carolina Bar Practice and Procedure Committee has created a subcommittee to study and evaluate the issue of e-discovery amendments.

Tennessee

The Tennessee Supreme Court has adopted Amendments to the Rule of Civil Procedure governing e-discovery issues, to become effective on July 1, 2009, “subject to approval by resolutions of the General Assembly.”   Order, January 9, 2009. The rules are unique, and borrow from the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information issued by the Conference of Chief Justices (2006). For more details, see the analysis in Baker, Donelson, New E-Discovery Rules for Tennessee.

Texas

Texas was the first state to enact e-discovery rules, having added §§196.3 and 196.4 to its Civil Procedure code in 1999. It requires payment of reasonable expenses of any extraordinary steps required to retrieve and produce information which is not reasonably available to the responding party in its ordinary course of business.

Utah

The Utah Supreme Court approved a set of e-discovery rules based on the Federal Rules, effective on November 1, 2007.  Unlike most other state enactments, preservation obligations are among the topics included in the pre-trial provisions, the power to sanction under inherent powers is expressly recognized and early disclosure requirements are mandated. In addition, the identification requirement for inaccessibility requires that a party must "expressly make any claim that the source is not reasonably accessible, describing the source, the nature and extent of the burden, the nature of the information not provided and any other information that will enable other parties [seeking discovery] to assess the claim."

Vermont

The Rules Committee plans to take up consideration of e-discovery amendments in 2008

Virginia

Effective January 1, 2009, the Civil Rules have been revised to include many, but not all of the provisions of the 2006 Amendments, not including the safe harbor provisions and "meet and confer" obligations.

Washington

A subcommittee of the Washington State Rules Committee has proposed adoption of the provisions of the Federal Amendments. The proposal will be considered by the Supreme Court in 2008 and would not come into effect until 2009 at the earliest.

Wisconsin

The Wisconsin Judicial Council submitted a Petition for An Order adding a series of e-discovery amendments to the Wisconsin Statutes on April 23, 2009. It is anticipated that public comments will be solicited, but no dates have been established as of July, 2009.

Wyoming

The Wyoming Supreme court amended its Civil Rules to conform to the 2006 Amendments in (similarly numbered) Rules 26, 33, 34, 37 and 45 effective on July 1, 2008.