State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update
Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information. Recently, Thomas Allman, a recognized authority on electronic discovery, gave permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country. Our thanks to Mr. Allman for his analysis, and his gracious permission to post the article here.
Introduction
Many states have adopted state-wide provisions to address some of the unique procedural issues involved in e-discovery. In addition, a number of “commercial” or “business” courts within states, as well as local courts, have adopted specialized rules on the topic.
As of September 2009, twenty-three states have adopted statewide e-discovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (“2006 Amendments”). In addition, several states have adopted, typically as a separate measure, an analog to the Federal Evidence Rule 502 dealing with waiver of the attorney-client privilege or work product protection.