Dissent to Order Adopting Mandatory Meet and Confer Rule Highlights Tension in Addressing Cost and Efficiency in E-Discovery
In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010)
On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting an amendment to Wis. Stat. § 804.01 prohibiting parties from engaging in electronic discovery until after the parties confer regarding several specified issues. The rule states that “[n]o party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court …” The mandated issues for discussion include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of the proposed discovery and the extent to which such costs shall be limited, among other things. If a party fails to participate or if agreement cannot be reached, judicial intervention may be sought. The purpose of such a rule, as expressed in its attendant note, is to “manage the costs of the discovery of electronically stored information.”