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.”

The amendment was adopted despite a strong dissent which expressed the concern that such a mandate “has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation.”  The dissent reviewed the Judicial Council’s recommendation which reasoned that unlike the federal courts, Wisconsin state courts “do not have many cases involving a large number of documents and electronic discovery disputes” and that such a rule would “impose ‘significant added burden on litigants while yielding little benefit.’”  Additionally, the dissent cited the Seventh Circuit’s ongoing electronic discovery pilot program and the report on phase one of that program which indicated that “a majority of attorneys who responded to a survey opined that the principles underpinning the new federal rules, which included a mandatory meet and confer, neither enhanced nor increased efficiency” and expressed its agreement that the newly adopted rule “has the potential to diminish” both fairness and efficiency.  Specifically, the dissent asserted that “[a] mandate to confer can diminish fairness if used as a sword against unrepresented litigants” and that “[i]t has the potential to decrease efficiency by spawning satellite litigation regarding compliance issues.”

The dissent also expressed concern that the “unnecessary mandate” will increase the cost of litigation because of the efforts required to accomplish the mandatory meeting, particularly in the case of pro se litigants.

The dissent concluded with a call to “judges, lawyers, and litigants from around the state to monitor this new mandate, and if it is not working, [to] petition the court for change.”

A copy of the full opinion is available here.

Note: Amendments to Wisconsin’s civil procedure rules addressing the discovery of electronically stored information will become effective January 1, 2011.